Concurrent Estates
All co tenants has right to possess the whole
Tenancy in Common
Characteristics
Unities of Possession
Right to possession whole
Each tenant owns separate and undivided fractional share
One dies, passes to heirs (can devise by will or conveyance)
Need court order to transfer title (probate)
Modernly: Default Concurrent Estate
Characteristics: Any proportion of shares, equal or unequal
Can petition court to divide by partition in kind or sale
Joint Tenant
Each tenant owns undivided fractional Equal shares and owns WHOLE
Passes to co tenant when dies (right of survivorship) (No court order needed to
transfer title)
Can not be conveyed or inherited
4 requirements Unities
Time – Acquired at same time (sometimes have to use strawman at CL)
Title- same title
Right to Possess the Whole (this cannot be altered)
Interest- percentage and type of ownership must be the same
Modernly: Just need intent over unities, for creation and dissolution but intent will be evaluated
with presumption of TIC unless intent is super clear
Ends with severance of any of the unities
Partition
Transfer
And mortgage in some states (when severed turns to tenancy in common)
Tenancy by Entirety = Marriage
5 unities (time, interest, possession, and title (4 plus marriage)
Minorites of states practice this
Cannot transfer without other spouse intent
Creditor cannot attach without consent from both spouse.
Ends with end of marriage or death.
Rights and Liabilities of Co-Tenancy
Contribution for Expenses
If co-tenant pays. For more than his pro-rate share, entitled to contribution from other
co-tenants
Acts as inducement from the protection to the payor by a claim for action
Mortgages
Insurance Premium
Taxes
Rent and profit from 3rd persons
Necessary repairs which don’t add value to asset
Does not apply to improvement
Improvement add value or life to the asset
No right to contribution but can recoup cost associated after partition only
to the extent of the cost
Waste: Irreparable damage to the property
Open Mines doctrine: Destruction of the property is not waste if it is for a known
specific purpose the property has previously been used for at the time of acquisition of
the property and cotenant is using property for same purpose (not waste)
Waste: If never used for the purpose and unilaterally decides to use property for that
purpose, waste.
Affirmative Waste: Doing something to contribute to damage to the property or its
value.
Waste by failing to act: Not doing something to the property that results in irreparable
damage to the property and decrease in the property value.
Ouster:
When one tenant occupies and possesses the whole while not allowing the other co tenant his
possession to the property
Constructive Ouster
Where property is not suitable to double occupancy, one cotenant may operate to exclude the
other. Partition. In kind preferred by the court.
In kind, plus owelty if uneven divide and balance is due to make fair.
