Concurrent Ownership - Notes PDF

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Session 9 Property – Professor Pollans August 4, 2021 CONCURRENT OWNERSHIP Concurrent Ownership: when two or more people have the simultaneous right of possession in an undivided whole of the estate. Three Types of Concurrent Ownership (1) Tenancy in Common (2) Joint Tenancy (3) Tenancy by the Entirety The three types of tenancies differ in four main ways: (1) How they are created (2) Whether there is a right of survivorship (3) Whether tenants can unilaterally sell/transfer/encumber the property (4) How they are terminated or severed Tenancy In Common Tenancy in Common: each tenant has the right to possess the entire property, even if they have different fractional shares of ownership.  Tenancy in common is the default form of joint ownership. Creation: Tenancy in common is created any time there is a sale or transfer of a single property to multiple people. Ex: O  A & B Sale: Tenants in common can only sell what they have. HYPO: A & B are tenants in common of a residential home. A owns a 75% ownership interest in the property. B owns the remaining 25%. A decides to sell his interest in the property to C. Survivorship: There is no right of survivorship for Tenancy in Common. Ex: A & B are tenants in common. A dies. A’s heir inherits A’s ownership interest in the property.

Termination: Tenancy in Common can be severed when (1) One tenant in common sells their ownership interest to the other  Ex: A & B are tenants in common (75/25). A sells his 75% share to B. (2) All tenants in common agree to sell the property to a third party.  Ex: A & B are tenants in common. They both agree to sell the whole property to C. (3) Court ordered partition Joint Tenancy Joint Tenancy: when two or more individuals jointly own property with a right of survivorship. Creation: to make a joint tenancy, must satisfy the four unities: (1) Conveyance at the same time (2) By the same title (i.e. in the same legal instrument) (3) With identical or equal interest/shares (4) With the right to possess the entire property Sale: Joint tenants have the unilateral right to sell. HOWEVER: that sale will sever the joint tenancy! HYPO: A & B are joint tenants. A decides to sell to C. Survivorship: Joint Tenancy DOES have a right of survivorship.  When one joint tenant dies, their share automatically goes to the surviving joint tenant. HYPO: A & B are joint tenants. A dies with a will leaving his share of the property to C. Multiple JT HYPO: A, B, and C are joint tenants. A dies. Termination: unilateral sale severs a joint tenancy

Tenancy by the Entirety Tenancy by the Entirety: concurrent ownership between spouses  Property is considered to be owned by the marital entity rather than the individual Creation: Creation of a Tenancy by the Entirety requires (1) satisfaction of the four joint tenancy unities and (2) marriage between the co-tenants. Sale: There is no unilateral right to sell with Tenancy by the Entirety.  The married couple are seen as one entity and must both agree whether to sell or not. Survivorship: Tenancy by the Entirety DOES have a right of survivorship. NOTE: Unlike with Joint Tenancy, unilateral sale does NOT break the survivorship.  Why? Because there is no unilateral right to sell. Termination: Tenancy by the Entirety terminates when (1) both parties agree to sell, (2) both parties agree to restructure as a different form of concurrent ownership, or (3) parties get divorced. Other Items of Note for Concurrent Ownership 

A co-tenant in possession of the property does not owe rent to other co-tenants not in possession. o EXCEPTION: Ouster  When one co-owner excludes the other from their jointly owned property, the ouster may be required to pay rent.

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A co-tenant may unilaterally enter into a lease agreement with a third-party for their interest in the property without severing the joint tenancy. o HOWEVER: When the lessor dies, the lease becomes invalid due to the right of survivorship.

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Short of divorce, the right of survivorship in a Tenant by the Entirety is indestructible from a unilateral perspective. o To destroy the right of survivorship, both parties must agree to the transaction.

MARITAL PROPERTY Community Property Jurisdictions All property acquired during the course of a marriage is communal and owned by the marriage entity, not the individual.  How assets are divided in the case of divorce: o Strict division of all assets in half OR o Equitable division Separate Property Jurisdiction All property acquired during a marriage is separate unless designated communal.  How assets are divided in the case of divorce: o Equitable division...