CONCURRENT ESTATES:
1). Where two or more persons have simultaneous rights of present or future possession.
2). Their rights are equal in quality and usually equal in quantity.
DISTINGUISH CONCURRENT FROM CONSECUTIVE INTERESTS
1). Example of Concurrent: My farm to A and B (both A and B have present estate and B’s interest runs concurrently with A’s interest)
COMMON LAW CONCURRENT ESTATES
1. Joint Tenancy: with rights of survivorship, owners are joint tenants with rights of survivorship or JT
2. Tenancy by the entirety: owners are tenants by the entirety or TE – ALMOST ABOLISHED
3. Tenancy in Common: owners are tenants in common or TC
JOINT TENANCY WITH RIGHTS OF SURV.
TENANCY BY THE ENTIRETY
TENANCY IN COMMON (favored)
Charact.
▪ Two or more tenants own the estate with right of survivorship and therefore are entitled to simultaneous possession and enjoyment.
▪ Upon the death of one of the tenants, the share passes to the surviving joint tenant (s)
▪ At common law, husband and wife were one legal entity and therefore a conveyance to them created a tenancy by the entirety. Tenancy by the entirety is recognized by about 20 states.
▪ Tenancy by the entirety provides a right of survivorship. It can be terminated by death, divorce, or agreement by both spouses.
▪ Two or more tenants in common own a share with use and enjoyment of the whole. There is NO right of survivorship.
▪ The four unities are not required. A modern example of a tenancy in common is a condominium.
Creation
▪ In the past, common law required four Unities to create a joint tenancy.
1). Time: interests of the joint tenants must arise at the same time
2). Title: present only if the interests are acquired by the same instrument
3). Interest: Tenants acquired identical interests (quality and quantity)
4). Possession: common right of possession and enjoyment
▪ Modern Significance of Four Unities
1). ND requires only unity of time and interest
2). Real Impact = on Severance: Any JT can “sever” the joint tenancy and defeat the survivorship aspect. So if A sells her interest to C that severs the JT between A and B, creates a TC between B and C.
3). Note: Severance does not mean a JT cannot convey her interest, but ONLY inter vivos (no death transfers)
4). Severance only affects relationship between conveying JT and other JTS
▪ Right of Survivorship and 4 unities required plus the unity of marriage
▪ Not severable: neither person may convey and sever the relation
▪ No partition by judicial order, except in divorce proceedings.
▪ ND: no TE in Dakota territory, so no TE when ND became a state.
▪ In modern times, a conveyance to two or more unmarried people is presumed to create a tenancy in common.
▪ A tenancy in common may also result from intestate succession or from a divorce that ends a tenancy by the entirety.
▪ Tenants in common may devise, sell, lease, or mortgage their share of the estate without the consent of the co-tenant.
▪ No matter how a tenant in common conveys the estate, it still remains a tenancy in common.
Modern Application
▪ Historical preference for JTsRoS has faded
▪ Most states assume conveyance to two or more person creates a TC unless grantor expressly declares intent to create JTwRoS. (many require “survivorship” be stated)
▪ ND = a conveyance to two or more persons creates a TC unless the grant expressly declares that it is a joint tenancy.(Can look at intent or other language)
ND – Can covey to yourself and another with rights of survivorship without conveying to a 3rd party.
▪ To A and B Jointly = NOT enough
▪ Today, where the tenancy by the entirety exists, any of the 3 concurrent estates can be created in a husband and wife, depending on the expresses intention of the conveyor.
TERMINATION OF CONCURRENT ESTATES
Severance
1). A joint tenant may sever the joint tenancy by conveyance without the consent or knowledge of the co-tenants. The joint tenancy becomes a tenancy in common.
2). I
rofit would be equally shared. November 18, Phillips bought the property that is in question. July 24th, 1989 Phillips signed an Addendum to Joint Venture Agreement, which indicated that one half of the his interest in the property (Salt Creek Property), and that he agreed to convey and transfer to Nyhus upon his own death, all of his remaining interests in any and all of the properties mentioned in the contract. Also, he said we would draft his will to meet this. July 19, 1990 Phillips and Nyhus signed an earnest money agreement to sell to Wiley part of the property they owned in Joint Tenancy. July 28th, 1990 Philips died before the closing of the sale to Wiley’s. The appointer to Phillips Estate claims that the joint tenancy was severed by the execution of the earnest money agreement. Trial court and Appellate court granted summary judgment in favor of Nyhus.
Issue: Whether a joint tenancy with right of survivorship is severed when all parties to that joint tenancy subsequently execute an earnest money agreement to sell to a third party real property held under joint tenancy.
Decision: Agreed with trial court and affirmed Appellate court decision: agreed with summary judgment for Nyhus.
Rule: mere execution of an earnest money agreement for the sale of real property held in joint tenancy with right of survivorship does not sever the joint tenancy or the right of survivorship. There must be intent to sever the JT. If one JT agrees to sell the property, it show intent to sever, but when both are selling the whole property it does not show intent to sever the relationship. This is b/c all JT entered into the earnest money together and not separately.
