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-- JackSherrick - 12 Apr 2021 | | | Concurrent Estates | |
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< | Concurrent ownership - when parties share property rights
A lot of discretion given to owners of estate to work out division of property rights within estate during relationship
E.g. interior decorating, who gets what room, etc.
Estate laws deal more with the formation and dissolution of these relationships rather than arbitrating disputes once these relationships have been established
Estates are tetris blocks and policy tools to promote certain kinds of relationships
Partnership - concurrent ownership for business purposes
There are three types of concurrent estates: tenancy in common, joint tenancy, and tenancy by entirety
These tenancy types differ in how they are created, right for survivorship, tenancy termination rights, whether tenants can encumber property
Encumbrance - modifying the property, e.g. redoing the kitchen
Survivorship - do property rights transfer to other tenants upon death?
Unilateral termination - can you get out of the arrangement without the other parties’ consent?
Tenancy in common
Default type, no transfer of rights upon death of common owner to other tenants
Each has right to possess property in its entirety
Each tenant has right to transfer property, upon death via lease, etc.
New tenant becomes co-tenant
Can request partition, ends tenancy in common and distributes property between tenants
A cotenant may lease out their interest in property to a third party without the permission of cotenants. The third party then becomes a tenant in common with the other cotenant. (Carr v. Deking - the father made a deal with a farmer without his son’s knowledge)
Joint tenancy
4 unities must exist at point of creation (TTIP)
Time - have to come into claim at same moment
Title - by same instrument (e.g. sale to all, will to all)
Time and title mean that it’s a single legal act
Interest - must have equal fractional shares
Unique to joint tenancy
Possession - have undivided right to possess property
Many jurisdictions are willing to waive the 4 unities if there is evidence of intent to create a joint tenancy
Like tenancy in common with survivorship right
When joint tenant dies, property interest transferred to remaining joint tenants
A will built into property structure. Can’t override this with another will
Joint tenancy is severed if a joint tenant sells their property interest to a third party
New tenant becomes tenant in common to other tenants
Remaining tenants are still in joint tenancy
Must have express intent to create joint tenancy
Can create joint tenancy out of tenancy in common
A lease to a third party expires upon the death of the lessor joint tenant (Tenhet v. Boswell - Johnson (a JT) leased to a third party w/o Tenhet’s (other JT) knowledge. Johnson died right after and the third party lease died with him.)
How joint tenancy deals with the dead hand problem
This principle is oftentimes unfair to the third party
Tenancy by entirety
Only available to married couples. Encumbrance depends on consent of spouse
Like joint tenancy +
Married couples are seen as one legal person erodes American individualism and promotes Aristophanes depiction of love
Protects each tenant from other tenant selling off property
One tenant can’t use property as debt collateral
Must have mutual agreement
Includes right of survivorship
If couple gets divorced, default to tenancy in common
Does not slip down to joint tenancy, goes all the way down to tenancy in common
Joint tenancy must be expressly created
Right against unilateral alienation
The interest of one spouse in property held in tenancy by the entirety cannot be reached by his or her individual creditors ( Sawada v. Endo - the Endos deeded their land to their sons, creditors tried to set aside conveyance to get at land, creditors failed)
Esteems the unity of a married couple
For our purposes, does not have to satisfy 4 unities
In some jurisdictions, lack of 4 unities can be overcome by intent (22:00) Feb 11 TA session
When a couple divorces and a constructive ouster occurs, the remaining spouse is required to pay rent to the ousted spouse (Olivas v. Olivas - a husband left to live with his GF)
Constructive ouster - a party leaves bc the situation has become so untenable
If one has many heirs, property management may become untenable at a certain point
Devise - act of transferring land via will to devisee
These arrangements grant a lot of discretion to tenants to work out how to use land
Rules for end of relationship but rely upon interpersonal relationships to govern land use during course of relationship
If land is held in common but only one tenant lives there, he does not owe them rent
Exception - a tenant has been ousted from the premises
Profits - co-owners are entitled to share any rents or other profits from the property
Burdens - co-owners have a duty to share basic expenses needed for the property
There is no duty to share the costs of improvements
Formula for contribution of tenant out of possession : (Carrying costs - rental value) x that owner’s fractional share
Carrying costs - costs associated with ownership such as mortgage, real estate taxes, utilities etc.
Family property rights - | >
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- Concurrent ownership - when parties share property rights
- A lot of discretion given to owners of estate to work out division of property rights within estate during relationship
- E.g. interior decorating, who gets what room, etc.
- Estate laws deal more with the formation and dissolution of these relationships rather than arbitrating disputes once these relationships have been established
- Estates are tetris blocks and policy tools to promote certain kinds of relationships
- Partnership - concurrent ownership for business purposes
- There are three types of concurrent estates: tenancy in common, joint tenancy, and tenancy by entirety
- These tenancy types differ in how they are created, right for survivorship, tenancy termination rights, whether tenants can encumber property
- Encumbrance - modifying the property, e.g. redoing the kitchen
- Survivorship - do property rights transfer to other tenants upon death?
- Unilateral termination - can you get out of the arrangement without the other parties’ consent?
- Tenancy in common
- Default type, no transfer of rights upon death of common owner to other tenants
- Each has right to possess property in its entirety
- Each tenant has right to transfer property, upon death via lease, etc.
- New tenant becomes co-tenant
- Can request partition, ends tenancy in common and distributes property between tenants
- A cotenant may lease out their interest in property to a third party without the permission of cotenants. The third party then becomes a tenant in common with the other cotenant. (Carr v. Deking - the father made a deal with a farmer without his son’s knowledge)
- Joint tenancy
- 4 unities must exist at point of creation (TTIP)
- Time - have to come into claim at same moment
- Title - by same instrument (e.g. sale to all, will to all)
- Time and title mean that it’s a single legal act
- Interest - must have equal fractional shares
- Possession - have undivided right to possess property
- Many jurisdictions are willing to waive the 4 unities if there is evidence of intent to create a joint tenancy
- Like tenancy in common with survivorship right
- When joint tenant dies, property interest transferred to remaining joint tenants
- A will built into property structure. Can’t override this with another will
- Joint tenancy is severed if a joint tenant sells their property interest to a third party
- New tenant becomes tenant in common to other tenants
- Remaining tenants are still in joint tenancy
- Must have express intent to create joint tenancy
- Can create joint tenancy out of tenancy in common
- A lease to a third party expires upon the death of the lessor joint tenant (Tenhet v. Boswell - Johnson (a JT) leased to a third party w/o Tenhet’s (other JT) knowledge. Johnson died right after and the third party lease died with him.)
- How joint tenancy deals with the dead hand problem
- This principle is oftentimes unfair to the third party
- Tenancy by entirety
- Only available to married couples. Encumbrance depends on consent of spouse
- Like joint tenancy +
- Married couples are seen as one legal person erodes American individualism and promotes Aristophanes depiction of love
- Protects each tenant from other tenant selling off property
- One tenant can’t use property as debt collateral
- Must have mutual agreement
- Includes right of survivorship
- If couple gets divorced, default to tenancy in common
- Does not slip down to joint tenancy, goes all the way down to tenancy in common
- Joint tenancy must be expressly created
- Right against unilateral alienation
- The interest of one spouse in property held in tenancy by the entirety cannot be reached by his or her individual creditors ( Sawada v. Endo - the Endos deeded their land to their sons, creditors tried to set aside conveyance to get at land, creditors failed)
- Esteems the unity of a married couple
- For our purposes, does not have to satisfy 4 unities
- In some jurisdictions, lack of 4 unities can be overcome by intent (22:00) Feb 11 TA session
- When a couple divorces and a constructive ouster occurs, the remaining spouse is required to pay rent to the ousted spouse (Olivas v. Olivas - a husband left to live with his GF)
- Constructive ouster - a party leaves bc the situation has become so untenable
- If one has many heirs, property management may become untenable at a certain point
- Devise - act of transferring land via will to devisee
- These arrangements grant a lot of discretion to tenants to work out how to use land
- Rules for end of relationship but rely upon interpersonal relationships to govern land use during course of relationship
- If land is held in common but only one tenant lives there, he does not owe them rent
- Exception - a tenant has been ousted from the premises
- Profits - co-owners are entitled to share any rents or other profits from the property
- Burdens - co-owners have a duty to share basic expenses needed for the property
- There is no duty to share the costs of improvements
- Formula for contribution of tenant out of possession : (Carrying costs - rental value) x that owner’s fractional share
- Carrying costs - costs associated with ownership such as mortgage, real estate taxes, utilities etc.
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