Tendency in Common Joint Tenancy Tenancy in the Entireties

Defined Each tenant owns separate but undivided Each owns undivided interest in whole property Created by Husband & wife
interest in whole property (like joint Elements: CL Elements: CL
1. 1. Time 6. 1. Time
tenancy). 2. acquired or vest @ same X 7. acquired or vest @ same X
3. 2. Title 8. 2. Title
Freely transferable by same instrument or by joint AP by same instrument or by joint AP never arise by
never arise intestate succession or other act of law intestate or by other act of law
4. 3. Interest 9. 3. Interest
all must have = & undivided shares and identical must have = + undivided shares & identical
interest measured & duration interest measured & duration
5. 4. Possession 10. 4. Possession
right to possess hole right to possess hole
IS doesnt stipulate how to create a jt or if right to survivorship 11. 5. Marriage
creates a jt i this JD the discuss all forms. AT common law the
unties of ,,, right to possess hole
Descendible Interest is Descendible NO NO
Seised per my et per tout Seised by the entirety Per tout et non per my
[share or moiety [portion less then half] & by whole] Only by both authorizing it
Conveyed Will or Deed or Intestate Lesser estate then owned= no severance Swartzbaugh Both must agree or 1 dies FSA
Write to Create This is default so any ambiguous co- Generally: When written
ownership granted will always =TinC A and B as JT & not as TinC valid
O A and B as TinC A and B jointly invalid = TinC.
O A and B Some states require: express statement
to A and B as joint tenants w/right of survivorship
Joint LE w/ CR in fee to survivor
A TinC fee simple w/ an EI in survivor
Fee simple to take effect in possession in the future
No Rights of survivorship Right to Survivorship Right to Survivorship
Severance Partition 1. Mutual Agreement 1. Die
2. 1 JT convey interest to 3rd P (destroying unities of X & title) 2. Divorce
3. Death of JT (extinguishes his/her interest); 3. Agreement
4. Partition: action brought by any JT [Delfino] Commission of tort by one co-tenant No
5. Unilateral Conveyance [Riddle] Severance, and property may not be taken
6. Mortgage by Title Theory [equity of redemption] for resulting liability (Sawada)
Property liability under federal criminal
[Harms] no severance for Lien theory foreclosure Hs survivorship interest is
forfeited. (1500 Lincoln Ave)
Where home had not been used for Hs
criminal activity ~ severance. CT cannot
take home owned by H and W. (US v. Lee)
Indistrutaable If A and B are TinC, Give share 2 3rd P 3rd P gives back=straw man H & W = 1 person
A C, then C and B are TinC. : Unilateral to me, back to me Not allowed to give away unless both agree
If B dies intestate Can convey a lesser interest in 3rd P= lease
C and Bs heirs hold as TinC
Court Acts: CT either physically partition tract of land into separately Women have Dower rights
owned parts or order land be sold & divide proceeds both men & women have dower rights
Probate Does not Avoid probate Avoids probate subject to tax Avoids probate
Creditors Can attach whenever Only life tenants life time GR: ~ allowed
Once dead= lost Unless IRS [US v. Craft] &
IRS + if spouse aid = forfeiture [US v. Barr]
Owners are responsible for these issues on land:

Defined Rent & Profit Tax & Mortgage Repairs Improvements

Partition Dividing up of a) By sale Credit=reasonable Divide Prop ~Physical P in Kind
whole property CT sells property that repair Physically Physical (Physical) is
into actual parts proceeds divided divided in a partition is utilized & non-
for each T amongst co-Ts by share partition impossible, improving co-T
of ownership. action & it is & property is awarded
1. Physical attributions possible to is sold, property w/
make impossible & award improver improvements &
2. Interests of O would improved may be CT orders that
better promote sale portion of awarded non-improving
property to added co-T pay
b) By kind improver value (if owelty to
Physical drawing lines w/o any) of it. improving co-T
divide interest into parts for enhanced
value
Ouster Occupying co- Occupying co-T can be Reasonable fair Credit=reasonable
tenants prevents sued occupying co-T market value repair
the occupancy of made to pay rent to non- of actual rent
another co-T occupying co-T= share
Accounting Co-T alone rents Other co-T can have Reasonable He gets no credit from other Co-T
or makes profit action for accounting for share Co-T Improver allowed all % value for rent & profits
by use of land by share of profit receives
3rd P
AP occupying Clock begins to Sue ouster in court from co-T if he is in sole
Co-tenant run against land unless ouster possession
of non-
occupying co-
tenants when act
of ouster occurs
Contribution Suit for $ of co- Right that gives 1 of right to this right w/o an
tenants share in several who are liable on against co-T @ fair agreement
what improver a common debt the share 2 value Exception cleaning
put in from his ability to recover Unless in sole up environmental
own pocket proportionality from possession contamination
each of other when 1
person discharges debt
for the benefit of all
 Severance Of Joint tenancy
[deceitful wife]
RULE: JT may unilaterally terminate a JT without use of intermediary device
POLICY: it is revolting to have no better reason for rule of law than that so it was laid down on the time of Henery IV. Common sense as well
he or she could otherwise achieve indirectly by use of fabrication of legal fiction
STATUTE: any instrument that unilaterally serves property must be recorded before transferor death or notarized not earlier 3 days before
death & not recorded later then 7 days after death if do ~ comply
Constructive Notice
Record Notice: if doc recorded at the public records office presumptions of knowledge

1. O A, B, and C as joint tenants. Later A D. Later B dies intestate, leaving H as his heir. What is the state of the title, or who gets what? What if B
died leaving a will devising his property to H?
A B C JT A D= A to B A to C= TinC B to C= JT
B dies leaving it to his Heirs via will= will void C right to survivorship= C=2/3 D=1/3 as TinC
2. T devises Aquaacre to A and B for their joint lives, remainder to the survivor. What interests are created by the devise? How do a joint tenancy and
the above conveyance differ?
This forces a JT in a life estate creates the same thing as a TE, but no need to be married
3. A and B are engaged. 2 weeks before wedding they buy a house & take title as A and B as tenants by entirety. Several years after marriage, A
moves out & conveys her interest in property to her brother C. C brings an action to partition property. Whats the result?
A & be cannot get married after b/c the 4 unties are not in sync thus, not a TE On exam
If A C she can because there was no TE, thus, C and B are TinC If want to create before married Do it as JT transfer it to
TE
4. Where A and B, joint tenants die in a common disaster with no sufficient evidence of who died first, Uniform Simultaneous Death Act says that of
estate passes as if A survived B and as if B survived A.
- When both die each survive each other A survives B & B survives A Thus, heirs get property

5. If A and B are joint tenants and A murders B, the Uniform Probate Code says that the murder severs the joint tenancy and converts it to a tenancy in
common. The murderer gets his/her , but the decedents share goes to his/her estate.
- Slayer statute forfeit right when JT kills another Thus, becomes TinC

Mortgages
Lien Theory of Mortgages Title Theory of Mortgages [Deed of trust]
that the Mortgagor (Borrower) keeps legal title the Mortgagee takes title to the land
the Mortgagee (Lender) has only a lien on the property. the Mortgagor retains only the equity of redemption.

[brothers case]
FACTS: in a lien Mortgages state
RULE: JT ~ severed when 1 person mortgages their interest but retitle sale under foreclosure [after expenditure redemption kind and convey
deed]
W succeeds the share of the deceased JT, by virtue of the conveyance that created the JT not as the successor of the deceased
POLICY: forces lenders to deal with all JTs if the lender wants to get money back

A & B JT if A takes lien Mortgage and B dies mortgage attaches to entire land thus, if foreclosed entire land ceased

1. If the court had instead held that mortgage severed the JT, what effect would paying off the mortgage have had during Johns
lifetime?
If severed no effect : once property is severed cannot retake as a JT
2. What if William had died first, Sprague had paid note off, & the Simmons foreclosed, would the whole property be subject to the
mortgage, or only a interest in it?
W dies 1st mortgage lien to entire property party forecloses on all
3. A and B own Blackacre in JT. A conveys 10 term of years to C. After 5 years, A dies, devising all of property to D. What are Bs
rights?
: Does not server the property when conveying a lessor interest in a 3rd P
: Right to survivorship trumps wills
On exam
: Once JT survived, has a right to evict another off land b/c he did not sign lease
4. What if A and B sign a written agreement that says B gets the rentals from and possession of the land for her life? Does the
agreement destroy the unity of possession? At As subsequent death, who gets Blackacre?
When 1 dies survivorship still survives When A dies B gets it
 Relationships Among co-owners
Partition is a remedy to divide RP held jointly or in common by 2 or more persons into individually owned interests
Partition by Sale Partition by Kind
A sale of property is conducted under supervision of Court physically divides the property.
CT. Court determines the share of the total property to which each co-tenant is
The expenses of the sale are paid. entitled (in the absence of evidence to the contrary, presumption is equal undivided
The net proceeds of sale are then distributed to the shares).
parties according to their respective interests. Court awards portions of property to parties in accordance w/ interests.
[CT order to sell property, $ divided given to each O = If, after physical division, there remains an inequality in value of the parcels
share] allocated to the former co-tenants, this may be corrected by payment, by
the party having the excess share, of owelty.
[cuts up property order an owelty= [% order in $ to O who got uneven
share]
(1). A and B are heirs of their father. They both want Dads old rocking chair. A brings a partition action. What relief should the court
award?
Joint custody if chair & right of survivorship keeps it
(2). A and B own Blueacre as TinC. Each agrees in writing w/ other never to bring an action to partition the land. A then brings a partition
action.
a. What result? CT does not like restraints on alienation. Thus, the CT allowed a to being a partition action.
b. What if instead the agreement provides for no partition until clouds on the title are resolved in a pending lawsuit? Same
result?
CT likes this b/c O are trying to fins true owners or make sure they have clear title & its not forever

Partition:
[1980]
FACTS: TinC of 20.5 acre parcel of land. P owned 99/144 interests D owns 45/144. D runs an overnight parking & repair on property & P plan develop into 45
residential building lots. P =action for a partition of sale w/division of proceeds according to interest. D lives there & family lived there.
CT must considered the interest of all the tenants in common & not merely economic gain of the tenant
CT failed to consider: 1 has had business there for a long time, made her home on that property, as her family before her for many years.
RULE: Since property in this case can practically be physically divided & since the interest of all O will better be promoted if a partition of
kind is ordered. CT concludes that the trial CT erred in ordering a part in sale & that under he facts found V is entitled to a
Partition of kind.
P of sale only ordered when: [2 ppl can
1. That physically activities of the land or subset is when partition in kind is impartial or inequitable
2. When interest of the O would be better promoted by partition of sale
Normal part of property that was shaped & nothing for development
POLICY: CT seeks to promote the best interest of Os though determination that in kind in the preferred method [in keeping with the CL
preference]

Sharing Benefits & Burdens of co-ownership: Ouster or AP by cotenant

[Rent to other O]
FACTS: Tenants in common S & M when lessee entered the building and vacated S came in and used it as a warehouse. M wrote a letter demanding S vacate half
of building or pays half of rental value. S did neither and she sued.
RULE: The main rule is that a co-T does ~ owe rent to his co-T, absent an agreement to pay rent or ouster. Thus, No rent for Mackereth
POLICY: Possession & occupancy of property held, as TinC are consistent w/ or co-T rights of ownership protection of these rights
encourages co-T to make productive use of property.

[Walnut Tree Case]

FACTS: 60 acres of land w/ walnut trees on it.
RULE: a JT who has ~joined in the leases executed by her Co-T & another cannot maintain an action to cancel the leases where the lessee
is in exclusive possession of the leased property. The lease does not sever the JT
POLICY: To promote productive use of jointly held property by one joint tenant w/o destroying the joint tenancy. The CT also encourages
potential lessees to deal w/ both joint tenants

Remedies Partition Ouster Accounting

Allowed Mrs. Swartzbaugh could bring an
action to partition entire 60 acres
or an action to partition portion
leased to Sampson (4 acres) for
duration of lease.
Why / Would not want to do this b/c then
it would server the land & she
would not be able to have right of
survivorship if Co-T passes before
her.
Mrs. Swartzbaugh could enter or try to
enter into possession w/ Sampson.
If Sampson resists, remedy of ousted co-
tenant available. If ousted, Mrs.
Swartzbaugh could recover of
reasonable rental value of leased land
(CL=mesne profits).
She can disrupt anything he is doing b/c JT
own the land as a whole.
Can recover the reasonable value of the
land
Mrs. can sue Mr. for an accounting of rents received
by him.
If lease rent = to or higher than market rent best
remedy for Mrs. Swartzbaugh b/c she is entitled to
all of rents collected by Mr. Swartzbaugh from
Sampson.
Granted, then Mrs will receive of the rents received
by the Co-tenant.
 Obligations Among Co-Tenants
Costs and Benefits of Concurrently Owned Property
Cost Benefits
Taxes Rents realized from leases to third parties;
Mortgage payments; Profits realized from using the property for business purposes;
Maintenance Value realized by 1 or more of co-tenants occupying the property as a residence.
Repairs
Improvements.

Rents & Profits Tax & Mortgage $ Repairs Improvements

General rule co-tenant who collects Co-tenant paying more than share Most JD, a co-tenant making Interests of improver are to be protected if this can be
rents & other has right to contribution from other or paying for them has no accomplished w/o detriment to interests of the other co-T.
payments (arising from co-tenant, at least up to amount of affirmative right to Improver must prove it: w/o detriment to others
co-owned property) value of share in property. contribution Increase the value beyond their cost; the improver gets the full
from 3rd P must If ~absence of an agreement.
account to co-T for upside (the total increase in value).
amount received
Exception If tenant has been Paying co-tenant gets credit Cost more than they yield in increased sales or rental value,
a. In sole possession, for reasonable repairs the improver bears the full downside risk
b.Value of use & enjoyment which (Subject to same qualification
had equals or exceeds such for tax& mortgage payment)
payments
~action any form contribution lie.
~ Uniformly applied.

:
Partition Credit=reasonable repair
Divide property ~ Physical P in Kind
Physically Physical Where partition in
divided in a partition is kind (physical) is
partition action impossible, utilized and the non-
and it is possible & property improving co-tenant is
to award the is sold, awarded property w/
improved portion improver improvements and the
of the property to may be court orders that the
the improver awarded non-improving co-
without added value tenants pay owelty
(if any) of to improving co-
them. tenant for the
enhanced value to
property resulting
from improvements.
Ouster Reasonable Market Credit =reasonable repair
Rent value
Accounting Get share
Based only on Improver allowed all increments in value for rents & profits
actual receipts, ~
fair market value.
Improver is allowed
all increments in
value (if any)
attributable to
improvements
Contribution Is the right to give to 1 several right w/o an agreement
persons who are liable on common Exception cleaning up
debt the ability to recover portion environmental contamination
from each other when 1 person
discharges debt for benefit of all.
If in sole possession ~ right to this
Example Cotenant leases: Bills that people share b/t people A and B co-tenants. A A and B own as TinC Roof needs repair. A fixes it, but B
Farm, or executes and only 1 person pays can get spend$10K on new roof for doesnt give $. A puts in pool. Again, B doesnt
mineral lease, cuts this remedy concurrently own property. contribute. Partition by sale occurs. Roof increased value
& sells timber he A ask B for $5K B says no. $10K & Pool increased value $20K. Original value w/o
must account for An institute partition action. repairs and improvements was $200K, now $230 (sale
net rents royalties & CT determines house w/ old price). How much does A get? T: $230K
other proceeds in roof valued at $100K & w/ A: $130K B: $100K
excess of share. new roof valued $125K, how If decrease gets nothing
much A and B each get?
100/2 + A get increase value
A: $75K B: $50K