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What are the THREE forms of concurrent ownership?
1. Joint tenancy: two or more own with the RIGHT OF SURVIVORSHIP
2. Tenancy by the entirey: a marital interest between married partners with the RIGHT OF SURVIVORSHIP
3. Tenancy in common: two or more own with NO right of survivorship
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What is the transferability of the joint tenancy?
Alienable
NOT devisable
NOT descendible
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How is a joint tenancy created?
Four Unities (T-TIP: below) + CLEAR statement of the RIGHT OF SURVIVORSHIP. A STRAW may be needed to create the four unities.
TIME: at the same time;
TITLE: by the same title (instrument);
IDENTICAL: with identical shares; AND
POSSESSION: the right to possess the whole
NY: No straw is needed. Grantor may convey to himself and future joint tenant.
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What are THREE ways in which a joint tenancy may be severed?
(spam)
1. Severance and Sale: a joint tenant can sell or transfer her interest during her lifetime.
2. Severance and Partition
3. Severance and Mortgage
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What happens when one joint tenant sells his interest in the joint tenancy?
It SEVERS the joint tenancy as to the seller's interest. The buyer becomes a TENANT IN COMMON.
If there were more than two joint tenants in the beginning, the joint tenancy remains INTACT as between the OTHER non-transferring joint tenants.
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At what point in the sale does the severance in "SEVERANCE AND SALE" take place?
In equity, when the joint tenant enters into a contract for the sale of her share. Closing is not necessary.
This is because of the doctrine of equitable conversion (equity regards as done that which ought to be done).
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What are the THREE variations of a SEVERANCE AND PARTITION?
1. By voluntary agreement: peaceful way to terminate.
2. Partition in kind: court action for physical division of Blackacre, if in the best interest of all.
3. Forced sale: court action where Blackacre is sold and the proceeds divided proportionately, if in the best interest of all.
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What is the rule for SEVERANCE AND MORTGAGE?
In the minority of states (following the title theory of mortgages): one joint tenant's execution of a mortgage or a lien on his or her share will SEVER the joint tenancy as to that now encumbered share.
In NY and the majority of states (following the lien theory of mortgages): one joint tenant's execution of a mortgage on his or her interest will NOT sever the joint tenancy.
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When/How can a TENANCY BY THE ENTIRETY be created?
It can only be created between married partners who share the right of survivorship.
In a state that recognizes the tenancy by the entirety, it arises presumptively in ANY conveyance to married partners UNLESS stated otherwise.
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Does NY recognize the tenancy by the entirety?
Yes
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Can creditors of one spouse touch a tenancy by the entirety?
MBE: No
NY: One spouse may mortgage his interest and his creditors MAY enforce against that interest, but only as to the debtor spouse's share. Further, the non-debtor spouse's rights, including the right of survivorship, must NOT be compromised.
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Can a right of survivorship in a tenancy by the entirety be conveyed unilaterally?
No. Neither tenant, acting alone, can defeat the right of survivorship by unilateral transfer to a third party.
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What are THREE features of a tenancy in common?
1. Each co-tenant owns an INDIVIDUAL PART and each has a right to POSSESS THE WHOLE
2. Each interest is DIVISIBLE, DESCENDIBLE, and ALIENABLE. There are NO survivorship rights.
3. The presumption FAVORS tenancy in common.
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Can a tenant (in a tenancy in common) demand rent from a co-tenant in exclusive possession of the property?
No. Absent OUSTER, a co-tenant in exclusive possession is not liable to the other co-tenants for rent.
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What results when one co-tenant wrongfully excludes another co-tenant from possession of the whole or any part in a tenancy in common?
Wrongful ouster
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What results when a co-tenant leases all or part of the premises to a third party in a tenancy in common?
He must account to his co-tenants, providing them their fair share of the rental income.
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May a co-tenant in a tenancy in common adversely possess the property?
MBE: No, unless he has ousted the other co-tenants.
NY: A co-tenant MAY acquire FULL TITLE by adverse possession if he is in EXCLUSIVE possession for 20 CONTINUOUS years. It's a theory of IMPLIED OUSTER.
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In the context of a tenancy in common, what is a CARRYING COST?
Expenses such as taxes and mortgage interest payments.
Each co-tenant is responsible for his or her fair share of carrying costs based upon his undivided share.
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In a tenancy in common, what rights does a co-tenant that repairs the property have?
The repairing co-tenant enjoys a right to contributlion for necessary and reaosanble repairs, provided that she has TOLD the others of the NEED.
Co-tenants must pay based upon their undivided share.
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In a tenancy in common, what rights does a co-tenant that improves the property have?
During the life of the co-tenancy, there is NO right to contribution for improvements.
However, at partition, the improving co-tenant is entitled to a CREDIT equal to any increase in value caused by her efforts, but bears full LIABILITY for any drop in value.
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In a tenancy in common, what CAN a co-tenant do?
What can he NOT do?
A co-tenant CAN bring an action for PARTITION and for WASTE.
A co-tenant CANNOT commit waste.
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