What is a tenancy in common?
Each co-owner owns an undivided and separate interest of the whole parcel of land, and each is entitled to simultaneous possession and enjoyment of the whole parcel (unity of possession). Tenants in common do not have rights of survivorship.
What is a joint tenancy?
A form of co-ownership between 2+ persons of an interest in real property whereby such persons own the interests together and each person has exactly the same rights in that interest as his cotenants. Joint tenants have rights of survivorship.
What are the four unities required to create an continue a joint tenancy?
- Unity of Time: Joint tenants acquire interest at the same time
- Unity of Title: Joint tenants acquire interest by the same instrument (usually, a deed).
- Unity of Interest: Joint tenants have equal, undivided shares and interests measured by duration.
- Unity of Possession: Joint tenants have the right to use and possess the whole property.
What happens if one of the four unities of a joint tenancy is severed?
A tenancy in common is created.
Can you convey a right in a joint tenancy?
Yes, but the joint tenancy as to the interest conveyed is destroyed.
E.g., If Tom, Dick, and harry are joint tenants, and Tom conveys his interest to Bill, the joint tenancy is severed as to Tom’s interest. Bill owns a 1/3 undivided interest as a tenant in common with Dick and Harry, but Dick and Harry continue as joint tenants.
What are the two basic differences between joint tenancies and tenancies in common?
- A joint tenancy creates a right of survivorship and tenancy in common does not.
- A tenancy in common only requires unity of possession, not the other three unities required in a joint tenancy.
What happens if one joint tenant mortgages their interest?
Jurisdictions are divided. Under the traditional view, a mortgage effects a severance of that joint tenants interest. Under the modern view, a mortgage merely creates a lien, and does not sever the joint tenancy.
What is a tenancy by the entirety?
A joint tenancy between married individuals in which there is (a) no right of survivorship; and (b) no right to partition.
What is a judicial partition?
A judicial action that severs a joint tenancy or tenancy in common
What is a partition in kind?
A court-ordered physical division of property held by joint tenants or tenants in common.
What is a partition in sale?
A court-ordered division of property held by joint tenants or tenants in common in which property is sold and the proceeds are divided.
Generally, partitions in sale are ordered where the division of land is impossible, impracticable, or inequitable.
What is ouster?
It occurs when a cotenant in possession refuses the request of another cotenant to share possession and enjoyment of the land.
What are the two primary types of ouster?
- A tenant prevents or bars physical entry by a co-tenant.
- A tenant denies co-tenants claim to title.
What are ousted co-tenants entitled to?
Their pro-rata share of the property’s fair rental value.
