Real Property 4: Concurrent Estates

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  1. What are the THREE forms of concurrent ownership?
    1. Joint tenancy: two or more own with the RIGHT OF SURVIVORSHIP

    2. Tenancy by the entirey: a marital interest between married partners with the RIGHT OF SURVIVORSHIP

    3. Tenancy in common: two or more own with NO right of survivorship
  2. What is the transferability of the joint tenancy?

    NOT devisable

    NOT descendible
  3. How is a joint tenancy created?
    Four Unities (T-TIP: below) + CLEAR statement of the RIGHT OF SURVIVORSHIP. A STRAW may be needed to create the four unities.

    TIME: at the same time;

    TITLE: by the same title (instrument);

    IDENTICAL: with identical shares; AND

    POSSESSION: the right to possess the whole

    NY: No straw is needed. Grantor may convey to himself and future joint tenant.
  4. What are THREE ways in which a joint tenancy may be severed?

    1. Severance and Sale: a joint tenant can sell or transfer her interest during her lifetime.

    2. Severance and Partition

    3. Severance and Mortgage
  5. What happens when one joint tenant sells his interest in the joint tenancy?
    It SEVERS the joint tenancy as to the seller's interest. The buyer becomes a TENANT IN COMMON.

    If there were more than two joint tenants in the beginning, the joint tenancy remains INTACT as between the OTHER non-transferring joint tenants.
  6. At what point in the sale does the severance in "SEVERANCE AND SALE" take place?
    In equity, when the joint tenant enters into a contract for the sale of her share. Closing is not necessary.

    This is because of the doctrine of equitable conversion (equity regards as done that which ought to be done).
  7. What are the THREE variations of a SEVERANCE AND PARTITION?
    1. By voluntary agreement: peaceful way to terminate.

    2. Partition in kind: court action for physical division of Blackacre, if in the best interest of all.

    3. Forced sale: court action where Blackacre is sold and the proceeds divided proportionately, if in the best interest of all.
  8. What is the rule for SEVERANCE AND MORTGAGE?
    In the minority of states (following the title theory of mortgages): one joint tenant's execution of a mortgage or a lien on his or her share will SEVER the joint tenancy as to that now encumbered share.

    In NY and the majority of states (following the lien theory of mortgages): one joint tenant's execution of a mortgage on his or her interest will NOT sever the joint tenancy.
  9. When/How can a TENANCY BY THE ENTIRETY be created?
    It can only be created between married partners who share the right of survivorship.

    In a state that recognizes the tenancy by the entirety, it arises presumptively in ANY conveyance to married partners UNLESS stated otherwise.
  10. Does NY recognize the tenancy by the entirety?
  11. Can creditors of one spouse touch a tenancy by the entirety?
    MBE: No

    NY: One spouse may mortgage his interest and his creditors MAY enforce against that interest, but only as to the debtor spouse's share. Further, the non-debtor spouse's rights, including the right of survivorship, must NOT be compromised.
  12. Can a right of survivorship in a tenancy by the entirety be conveyed unilaterally?
    No. Neither tenant, acting alone, can defeat the right of survivorship by unilateral transfer to a third party.
  13. What are THREE features of a tenancy in common?
    1. Each co-tenant owns an INDIVIDUAL PART and each has a right to POSSESS THE WHOLE

    2. Each interest is DIVISIBLE, DESCENDIBLE, and ALIENABLE. There are NO survivorship rights.

    3. The presumption FAVORS tenancy in common.
  14. Can a tenant (in a tenancy in common) demand rent from a co-tenant in exclusive possession of the property?
    No. Absent OUSTER, a co-tenant in exclusive possession is not liable to the other co-tenants for rent.
  15. What results when one co-tenant wrongfully excludes another co-tenant from possession of the whole or any part in a tenancy in common?
    Wrongful ouster
  16. What results when a co-tenant leases all or part of the premises to a third party in a tenancy in common?
    He must account to his co-tenants, providing them their fair share of the rental income.
  17. May a co-tenant in a tenancy in common adversely possess the property?
    MBE: No, unless he has ousted the other co-tenants.

    NY: A co-tenant MAY acquire FULL TITLE by adverse possession if he is in EXCLUSIVE possession for 20 CONTINUOUS years. It's a theory of IMPLIED OUSTER.
  18. In the context of a tenancy in common, what is a CARRYING COST?
    Expenses such as taxes and mortgage interest payments.

    Each co-tenant is responsible for his or her fair share of carrying costs based upon his undivided share.
  19. In a tenancy in common, what rights does a co-tenant that repairs the property have?
    The repairing co-tenant enjoys a right to contributlion for necessary and reaosanble repairs, provided that she has TOLD the others of the NEED.

    Co-tenants must pay based upon their undivided share.
  20. In a tenancy in common, what rights does a co-tenant that improves the property have?
    During the life of the co-tenancy, there is NO right to contribution for improvements.

    However, at partition, the improving co-tenant is entitled to a CREDIT equal to any increase in value caused by her efforts, but bears full LIABILITY for any drop in value.
  21. In a tenancy in common, what CAN a co-tenant do?

    What can he NOT do?
    A co-tenant CAN bring an action for PARTITION and for WASTE.

    A co-tenant CANNOT commit waste.
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Real Property 4: Concurrent Estates
2011-07-12 03:58:26
NY Bar Exam Handout

MBE Real Property Concurrent Estates
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