PROPERTY
CONCURRENT OWNERSHIP
Ø [G167] Successive ownership à eg. LE followed by remainder in B or concurrent ownership à owned by 2 or more persons at the same time!
Ø Five types of Concurrent Interest:
Partnership
coparceny
Tenancy in Common
Joint Tenancy
Tenancy by the Entirety
Ø TENANCY IN COMMON (most basic form of concurrent ownership)
o 2 or more people, each of whom own an interest in property at the same time
o No right of survivorship – when a tenant in common dies, her interest passes to her heirs or devisees, not to the surviving tenant in common.
o Any, even unequal, division of interest is possible (i.e.A – 60%; B – 40%); completely flexible, can acquire interest at any time; diff estates even.
o Required unity of possession: each has an undivided right to possess the entire property, subj only to the co-tenants right to possess the entire thing and objection.
o The most common form of co-tenants are husband and wife – but if it turns out that the cotenants cannot agree about possession, law invokes partition
§ Partition in kind: A and B own land 60/40 à divide land according to their interests. For some pieces of property that works fine. But some types of property are not well-suited for partition in kind (i.e. family home).
§ Partition by sale and division of proceeds: sell property and divide proceeds according to proportion of interest.
§ Either tenant has the absolute right to insist on a partition.
o Sometimes parties might prefer partition by sale when in kind possible.
o The law presumes a TiC à “to A and B” unless married (not true at common law which favored sole ownership – rendering feudal incidents)
Ø JOINT TENANCY
o Right of Survivorship: when one cotenant dies, that interest disappears and the survivors’ interest expands to fill the vacuum and take the whole estate (the only diff from TiC)
o No limit to the number of persons – the tenant who lives the longest takes the property by herself
o “As a joint tenancy entity, they own the entire property”…the entity is kinda like a corporation.
o JT cannot arise where persons inherit under Intestate Succession – heirs always take as Tenants in Common.
§ When one dies, nothing passes to the suviving joint tenants
§ Decedent’s interest is just extinguised/vanishes.
§ Joint tenants cannot devise by will – creditors cannot attack tenant’s share after tenant’s death b/c it just disappeared!
o 4 Unities Requirement – JT interests must be equal in all respects – These MUST be satisfied or there will be no JT:
§ Unity of possession: all have same right to possess entire property – one JT can agree to waive right to poss w/o breaking unity of poss
§ Time: interest of each JT must vest at the same time.
§ Title: JTs must acquire title by same deed, will or joint Adverse Possession
· If grantor is trying to create joint tenancy in him and another, discuss the unity of time and title problems (unless common law rules don’t apply!) à might require strawperson.
§ In
tirety)
o
Ø PRESUMPTIONS
o For successive interests, commonlaw presumption was in favor of life estate (if FSA not clear, presumption in life estate). Presumption today is FSA (you’ve conveyed all you’ve got) unless you made clear otherwise
o For concurrent interests, commonlaw presumption was in favor of joint tenancy (avoid dividing up land). Modern presumption in favor of tenancy in common (assume each party wants its heirs to suceed to property rather than person they bought property with)
o Married persons are presumed to take as tenants by entirety – old common law preference retained!
Ø PROBLEMS (p. 342)
O à to A, B and C as joint tenants. Then A à to D. Then B dies intestate, leaving H as his heir.
A, B and C have equal interests until A conveys her interest and severs JT. Then D (w/ no rt to survivorship) is TiC; B and C are still JT w/ respect to each other but TiCs w/ respect to D. When B dies, heir H cannot succeed to interest in joint tenancy. C’s interest expands to fill void. D (1/3 interest) and C (2/3 interest) are TiCs. It doesn’t matter if B devises his interest to Hà B can’t convey rt of survivorship to H b/c B has no interest in land on death.
