The three forms of concurrent estates
- Joint tenancy
- Tenancy by the entirety
- Tenancy in common
Definition of joint tenancy
Two or more own with the right of survivorship.
Definition of tenancy by the entirety
A protected marital interest between spouses with the right of survivorship
Definition of Tenancy in Common
Two or more people own without the right of survivorship.
Distinguishing characteristics of the joint tenancy
- The right of survivorship
- Inter vivos transferability
- Not devisable or descendible
Right of Survivorship
When one joint tenant dies, his or her interest passes automatically to the surviving joining tenant.
(avoids probate)
Joint tenancy alienability
- Inter vivos
- joint tenant may sell or transfer her during her lifetime.
- Can do so secretly, without the others’ knowledge or consent.
Devisability or descendibilty of joint tenants
- A joint tenant’s interest is not devisable or descendible, because of the right of survivorship.
- When a joint tenant dies, her interest passes automatically to the surviving joint tenants.
How to create a joint tenancy
The four unities; T-TIP
Joint tenants must take their interests:
- At the same Time (often using a straw man, a third-party who takes the property and conveys it to all joint tenants)
- By the same Title (in the same instrument or deed)
- With Identical shares, and
- With identical rights to Possess the whole.
VA Joint tenancy creation rule
Strawman not required. An owner can create a joint tenancy in himself and another or others with a single deed.
Joint tenancy must contain this in addition to the four unities.
- Language of the grant must contain clear expression of the right of survivorship.
- The joint tenancy arises only if the right of survivorship is clearly expressed.
- It must be explicitly communicated and it must coexist with the presence of the four unities.
- For example, O conveys “To A, B and C as joint tenants with the right of survivorship.”
VA Survivorship language requirement
The right of survivorship must be expressly specified. Without it, the grant is of a tenancy in common.
Thus, a grant to A and B “as joint tenants, and not as tenants in common” does not carry a right of survivorship because it was not expressly reserved.
The two ways a joint tenancy is terminated
- inter vivos sale or conveyance.
- Partition
Effect of Inter vivos sale or conveyance on joint tenancy
- a joint tenant can sell or transfer her interest during her lifetime.
- One joint tenant’s sale severs the joint tenancy as to the seller’s interest because it disrupts the four unities. Thus, the person who buys from the selling joint tenant is a tenant in common.
- To the extent that we started with more than two joint tenants in the first place, the joint tenancy remains intact as between the other, nontransferring joint tenants.
Inter vivos sale or conveyance on joint tenancy example
- O conveys Blackacre, “To Ted, Marshall and Barney as joint tenants with the right of survivorship.”
- each owns a presumptive one-third share plus the right to use and enjoy the whole. (four unities)
- Now, suppose that Ted has sold his interest to Lily. What result?
- Ted’s sale to Lily severs the joint tenancy as to Ted’s interest.
- Lily holds 1/3 as tenant in common with Marshall and Barney still holding 2/3 as joint tenants.
- Later, Marshall dies, leaving behind his heir, Robin. What result?
- Barney takes Marshall’s share because of the right of survivorship. Robin takes nothing.
- Result: Barney holds 2/3 with Lily, who holds 1/3. Barney and Lily are tenants in common.
Three types of partition
- Voluntary Agreement
- Partition in Kind
- Forced Sale
Voluntary Agreement
This is an amicable, peaceful way for the parties to privately end their relationship.
Partition in Kind
- Judicial action where the court orders physical division of the property.
- Must be in the best interests of all parties.
(works best when land is a rural tract, or a vineyard, or some other form of sprawling acreage.)
Owelty for partition in kind
- If, upon physical division, the value of one party’s interest disproportionately exceeds the value of the others, the court may award this to the parties in court.
- This is an equitable device, which allows the court to order the party with the higher value interest to pay the other co-tenants and equalize the respective values.
Forced sale
- Judicial action where the court sells the land, with the proceeds divided proportionately.
- Works best when the land is a residence or other building that does not lend itself to physical division.
- Must be in the best interests of all parties.
Tenancy by the entirety
marital estate that can only be created between married partners, who take as fictitious “one person” with the right of survivorship.
In states that
How Tenancy by the Entirety is created
In states that recognize this, it arises presumptively in any conveyance to married partners unless the language of the grant clearly indicates otherwise.
VA Tenancy by the Entirety Creation
- Grant should indicate that it is for a tenancy by the entirety or that a right of survivorship is indended.
- Conveyances using the words “tenants by the entirety” or “joint tenants with the common-law right of survivorship” will result in a TBTE estate.
- The words “joint tenants” alone will result in a TIC.
Special protections of Tenancy by the Entirety
Remember: “Can’t touch this”
- Creditors: Creditors of only one spouse cannot touch this tenancy for satisfaction of the debt.
- Unilateral conveyance: One spouse, acting alone, cannot defeat the right of survivorship by unilaterally conveying to a third party.
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Present Estates43
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Future Interests50
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The Rule Against Perpetuities17
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Adverse Possession19
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Concurrent Estates37
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Landlord and Tenant Law19
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Tenant's Duties13
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Landlord's Duties14
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Transfers of Leaseholds/Landlord's Tort Liability14
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Servitudes15
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Easements35
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Licenses and Profits9
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Restrictive Covenants33
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Land Sale Contracts and Closing41
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Recording24
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Mortgages27
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Other Topics12
