Memory Concurrent Ownership
Terms
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- Tenancy in Common
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• A tenancy by two or more persons, in equal or unequal shares, with each person having the right to the possession of the whole, but with no right of survivorship
• Example: T devises Blackacre to A and B. A and B are tenants in common. If A conveys his interest to C, B and C are tenants in common. If B then dies intestate, B’s heir is a tenant in common with C.
• In modern law, tenancy in common is preferred characterization of simultaneous ownership - Joint Tenancy
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• A tenancy by two or more persons, in equal shares, with each person having the right to the possession of the whole, but with right of survivorship
• The Four Unities must be present: time, title, interest, possession.
• Hen one joint tenant dies nothing passes to the surviving tenants – the estate continues in survivors freed from the decedent’s interest.
o If it was split between 5 and one died, then in effect redistributed to now split between 4.
• At common law, joint tenancy was preferred characterization of simultaneous ownership. - Per my et per tout
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• By the share or moiety and by the whole.
• Joint tenants are considered as single owner – each tenant is seised per my et per tout. - Tenancy in Entirety
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⬢ A joint tenancy that arises between a husband and wife, when a single instrument conveys the realty to both of them, but nothing is said in deed or will about character of their ownership.
⬢ Need Four Unities (time, title, interest, possession) along with marriage. - Coparency
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⬢ An estate that arises when two or more persons jointly inherit from one ancestor, the title and right of possession being held equally by all.
⬢ Usually in common law where no son to inherit. All of the daughters would take as coparcenors. - Common Law Concurrent Interests
- ⬢ There are five: tenancy in common, joint tenancy, tenancy by the entirety, coparceny and tenancy in partnership. (For our purposes focus on first three).
- Two-to-Transfer Rule
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• In order to create a valid joint tenancy where one of the proposed joint tenants already owned an interest in the property it was necessary to first convey the property to a disinterested third person (strawman) who then conveyed the title to the ultimate grantees as joint tenants.
o Also used to sever a joint tenancy.
• From English common law when feoffment ceremony with livery of seisin – idea that feoffer (grantor) had to hand dirt to grantee (feoffee). One could not feoff himself because handing oneself a dirt clod is ungainly.
• Example: Riddle v. Harmon - 4 Unities of Real Property
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⬢ Must have all four in order to have a joint tenancy.
o Time: acquire interest at the same time.
o Title: acquire title by same instrument
o Interest: have equal, undivided interests
o Possession: have a right to possession of the whole (at time of creation)
⬢ Absence or severance of all 4 destroys the joint tenancy and creates a tenancy in common.
⬢ Most common method to sever joint tenancy is to have one party convey all of his/her interest to a 3rd party. - Partition
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⬢ The privilege of each tenant to transform a concurrently held estate into separate estates
⬢ Types: Partition in Kind and Partition by Sale
⬢ Note: only available to joint tenancy and tenancy in common, not to tenancy by the entirety - Partition in Kind
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• Division of tenants’ land by creating separate parcels.
• Common Law: partition in kind preferred over partition by sale.
o Unless: 1) the land’s physical attributes make division impracticable or inequitable and 2) interests of all the parties is better promoted by Partition by Sale - Partition by Sale
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• Division of the proceeds from the sale of tenants’ land as one lot.
• Today this is preferred by most jurisdictions over partition in kind (belief that this is the fairest way)
o Even though preferred, partition by sale can be extremely unfair (resembling a takeover) if one party has a lot more buying/borrowing power than the other. - Owelty
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• A monetary award is given after partition in kind for the adverse impact one of the party’s use has on the others use.
• Example: Delfino v. Vealencis – the old lady was ordered to pay $26,000 owelty because her garbage hauling business was going to adversely effect other party’s desired use for residential development. - Ouster
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• The wrongful exclusion of someone (specifically a co-tenant) from property. Applies in cases where one cotenant moves onto the property that used to be used for rental income.
• Example: Spiller v. Mackereth
• Majority rule: “non liability for mere occupancy†– there must be a denial of the cotenant’s right to re-enter (a.k.a. adverse possession)
• Minority rule: liability for occupancy when rent is demanded.