PROPERTY OUTLINE
I. Concurrent Estates
a. Types
i. Tenancy in Common
1. Separate but undivided interests (each has right to possess the whole)
2. Descendible and conveyable
3. No survivorship rights
4. Presumed in USA unless expressly otherwise
ii. Joint Tenancy
1. Right of survivorship
a. If one joint tenant dies, his interest is extinguished, though nothing passes to the survivor – the estate simply continues
i. Simultaneous death = tenancy in common
b. Avoidance of probate
2. Requirement of Four Unities
a. Time – interests acquired or vested at same time
b. Title – acquired by same instrument or joint AP
c. Interest – Equal undivided shares (duration)
i. Increasingly ignored by courts
d. Possession – Each has right to possess whole
iii. Tenancy By the Entirety
1. Right of Survivorship
2. Requirement of Four Unities plus Marriage
a. Couple considered one person at common law, thus no unilateral severance
i. Severance via conveyance by husband and wife together
ii. Severance via divorce, becomes tenancy in common
b. Severance
i. Conveyance of interest by one party
1. Severs the unities of time and title
2. Joint tenancy becomes a tenancy in common
a. obtaining a mortgage (or lease)
i. Some jx consider it a conveyance (Title Theory)
ii. Other jx consider it a lien (Lien Theory)
ii. Conveyance to one’s self
1. Some jx require a “strawman” to sever
2. Other jx (Calif.) allow severance via conveyance to one’s self – Riddle v. Harmon
a. California Statutes – written and recorded instrument evidencing intent to sever
iii. If more than two Joint Tenants, the conveyance of one’s interest does not destroy the joint tenancy between the remaining parties
1. If A, B & C are JT and A conveys
ally for
i. Mortgage, taxes, and insurance (if required by mortgagor)
1. necessary repairs not always covered unless agreement (question as to what is necessary)
ii. Contribution action to force payments
1. Unless value of use exceeds payments made
iii. Offset liability
c. Improvements – No right to contribution
i. Though increased value may return to improving owner upon sale
2. Ouster
a. No rent liability of one co-tenant to the other unless the occupying co-tenant refuses a demand by the non-occupying co-tenant to be allowed into the use and enjoyment of the land – Spiller v. Mackereth
California Statute – requires written demand for concurrent possession
