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Co Ownership Outline

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This is an extract of our Co Ownership document, which we sell as part of our Property Outlines collection written by the top tier of Harvard Law School students.

The following is a more accessble plain text extract of the PDF sample above, taken from our Property Outlines. Due to the challenges of extracting text from PDFs, it will have odd formatting:

CO-OWNERSHIP I.

FORMS A

OF

CO-OWNERSHIP

Rules

1. Forms of co-ownership. Ownership may be consecutive (A ? B) or concurrent (A & B). Three types of concurrent relations: (1) tenancy in common (TIC), (2) joint tenancy (JT), and (3) tenancy by the entirety (TBTE). Each are defined by "unities."

T.7

UNITIES

UNITY

DEFINITION

Time

JT

TBTE

A & B must acquire the interest at the same time.

Requir ed

Require d

Title

A & B must acquire the interest via the same instrument (e.g. a will, not intestate), or joint adverse possession.

Requir ed

Require d

Interest

A & B must have an identical interest in the property.

Requir ed

Require d

Possession

A & B must have the right to possess the whole, but can voluntarily give exclusive possession to one.

Requir ed

Require d

Marriage

A & B must be married.

i. ii.

iii. TIC

Require d

Require d

Tenancy in common. Tenants have a separate, undivided interest in the property ("seised by the moiety"). The interest of each is descendible, so there are no survivorship rights. E.g. A ?
B & C. If B dies and D inherits, C & D are now both owners. May be partitioned. Joint tenancy. Similar to TIC except A & B are considered a single owner, "seised by the moiety" (share) and "by the whole" ("per my et per tout"). Therefore, instead of descendible interests, last living tenant has survivorship rights. E.g. if A & B are JTs and B dies, A gets whole property. To sever, B may convey interest to C and break "unities," or request partition. a. Inheritance. A joint tenant cannot pass her interest by will because it is "extinguished" at death. Huff v. Metz (Miss. 1996). Federal law still requires her estate to pay estate taxes, however. b. Creditors. If joint tenant is alive, creditors may seize/sell her interest in property; if dead, creditor has nothing to seize. Rembe v. Stewart (Iowa 1986). c. Interest unity. May not be literal; if A pays 1/3 and B 2/3 with intention to split sale price accordingly, OK. Moat v. Ducharme (Mass. App. 1990). Tenancy by the entirety. Similar to JT except A & B are husband (H) and wife (W). Neither can defeat right of survivorship of other by conveyance. No judicial partition either, except by divorce. Limited to real property in most jurisdictions.

2.

3. B

Conveying TICs v. JTs. By default, courts will presume a conveyance to multiple owners creates a TIC, unless A & B are married. Judges are very particular about this. a. Specification of JT. The conveyance must specify that A
& B have survivorship rights, e.g., "to A & B as joint tenants with right of survivorship." Hoover v. Smith (Va. 1994). Courts will also accept "jointly, as tenants in common, with survivor rights." Germaine v. Delaine (Ala. 1975). b. Deed that conveys JT and TIC. Unless ambiguous, a deed conveying JT in its granting clause will overrule a TIC in the habendum ("have and hold") clause. Kipp v. Chipps Est. (Vt. 1999) Partition and severance of co-ownership. i. Converting a TIC into a JT. Traditionally, if A & B were in a TIC, they would have to convey interest to C (a "strawman") and have C ? A & B as JT. Now, A may simply convey interest to self & B as JT. Riddle. ii. Severing a TBTE. If a house held in TBTE burns down and the jurisdiction restricts TBTE to real property, the insurance proceeds may be held in JT (better view because this is closer to the grantor's intent in creating a TBTE) or a tenancy in common (default presumption). Keep in mind the land is still held TBTE. iii. Severing a JT via conveyance. JT is severed when A or B breaks a unity, e.g. by conveyance. (Under TBTE, only H and W together may sever.) a. Liens. Liens do not extinguish JT absent conveyance of deed following expiration of redemption period. Harms. b. Mortgages. Mortgages are technically conveyances, so under the "title theory," mortgages sever JTs. Under the "lien theory," mortgages are like liens, so JT remains. Harms. Although the Harms court treated mortgage like lien and removed when A died, there are four possibilities when A conveys less-than-fee-simple interest (mortgage, lease, life estate, etc.) See, infra, TABLE 8. c. Leases. Most courts treat leases like mortgages, unless they are very long, in which case they are more analogous to conveyances. Reason: the loss of the survivorship feature would come as a surprise to the people who use JTs as will substitutes. iv. Severing a JT unilaterally. If A murders B, JT is severed. Otherwise: a. Traditional. To unilaterally sever, A has to "enfeoff" (grant interest in land to) a strawman, and have him convey interest back. Riddle. b. Majority / modern. Now, joint tenant may enfeoff herself. Riddle. v. Simultaneous death. If A & B are in JT and die within 120 hours of each other, property is distributed 1/2 as if A had survived and 1/2 as if B had survived. UNIFORM SIMULTANEOUS DEATH ACT.

Analysis

1. Forms of co-ownership. Joint tenancy. These are popular because they avoid probate. Tenancies by the entirety. These are popular because they offer limited creditor immunity---creditor of H but not W cannot take whole property. Partition & severance of co-ownership. i. Mortgages. As there are four possible outcomes for when A conveys less than a fee simple interest, courts have to choose

i. ii.

2.

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