property notes - The System of Estates Co ownership &...

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The System of Estates Co –ownership & Marital Interest I. Common law concurrent interests a. Types, Characteristics, Creation i. Tenancy in common 1. Tenants in common have separate but undivided interests in the property 2. Interest of each is descendible 3. Interest may be conveyed 4. No survivorship interest 5. Unity of possession is essential to a tenancy in common ii. Joint tenancy 1. Joint tenants have the right of survivorship 2. Together are regarded as a single owner 3. In theory each owns the undivided whole of the property 4. Avoids probate b/c no interest passes on the joint tenant’s death 5. Four unities are essential to a joint tenancy a. Time i. Interest of each tenant must be acquired or vest at the same time b. Title i. All joint tenants must acquire title by the same instrument or by a joint adverse possession. A joint tenancy can never arise by intestate succession or other act of law c. Interest i. All must have = undivided shares and identical interests measured by duration d. Possession i. Each must have a right to possession of the whole. After interest is created, however, one joint tenant can voluntarily give exclusive possession to the other joint tenant 6. At common law if these 4 unities do not exist a tenancy in common is created 7. Statutes in some jurisdictions abolish the requirement of the 4 unities and provide that a joint tenancy may be created by stating explicitly the intent to do so 8. If 4 unities exist and are later severed, the joint tenancy turns into a tenancy in common iii. Tenancy by the entirety 1. Can be created in only husband and wife 2. 4 unities (time, title, interest, possession) plus fifth (marriage) are required 3. Surviving tenant has the right of survivorship
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4. Neither husband nor wife can defeat the right of survivorship of the other by a conveyance of a moiety to a third party 5. Husband and wife together may convey their interest 6. Divorce terminates tenancy by the entirety; parties usually become tenants in common iv. Presumptions 1. English common law favored joint tenancies over tenancies in common 2. Today a grant or devise to two or more persons creates a tenancy in common unless an intent to create a joint tenancy is expressly declared v. Avoidance of probate 1. Joint tenancy a. A joint tenancy avoids probate b/c no interest passes on the joint tenant’s death b. A joint tenant cannot pass her interest in a joint tenancy by a will c. If a creditor acts during a joint tenant’s life, the creditor can seize and sell the joint tenant’s interest in property, severing the joint tenancy. If the creditor waits until after the joint tenant’s death, the decedent joint tenant’s interest has disappeared, and there is nothing the creditor can seize vi. Unequal shares 1. One of the 4 unities of a joint tenancy is equal shares. This feature is increasingly ignored by courts in situations where the parties agree that a different system will be used (A gets 1/3 B gets 2/3). b.
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property notes - The System of Estates Co ownership &...

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