Concurrent Estates

Concurrent estates involve property owned by two or more people at the same time.

Joint Tenancy

1. Characteristics

   1. Two or more tenants own the estate with a right of survivorship and therefore are entitled to simultaneous possession and enjoyment.

   2. Upon the death of one tenant, the share passes to the surviving joint tenant(s).

      • Example: Dan and Elaine are joint tenants with rights of survivorship in Purpleacre. If Dan dies first, Elaine has a fee simple absolute in Purpleacre. If Dan and Elaine die simultaneously, there is no longer a right of survivorship, and a one-half interest in Purpleacre passes to their respective heirs as a tenancy in common.

2. Creation

   1. In the past, common law required the four unities to create a joint tenancy. The interests must have been created:

      1. At the same time;

      2. By the same title;

      3. With identical interests; and

      4. With identical rights to possess the whole.

   2. Today, the grantor must demonstrate the intent to create a joint tenancy; otherwise, the presumption is that a tenancy in common has been created.

3. Transfer

   1. The joint tenancy ends with the joint tenant’s death, so it is not devisable or descendible.

   2. An inter vivos transfer also is invalid because it would break the four unities. The grantee would receive a tenancy in common.

Tenancy by the Entirety

1. Characteristics

   1. At common law, husband and wife were one legal entity and therefore a conveyance to them created a tenancy by the entirety. Tenancy by the entirety is recognized in about 20 states.

   2. Tenancy by the entirety provides a right of survivorship. It can be terminated by death, divorce, or agreement by both spouses.

2. Creation

   1. In some states, any conveyance to a married couple creates a tenancy by the entirety.

   2. Other states require the tenancy by the entirety to be expressed clearly.

3. Transfer

   1. In the past, a husband had exclusive control to transfer his right to possession and survivorship. Today, either spouse can have control.

   2. Neither spouse can defeat the other’s right of survivorship by conveyance to a third party.

4. Creditor’s rights

   1. The majority of states hold that the creditor of one spouse cannot touch the tenancy.

   2. In other states, the creditor may encumber one spouse’s share but cannot touch the other spouse’s share or interfere with the right of survivorship.

Tenancy in Common

1. Characteristics

   1. Two or more tenants in common own a share with use and enjoyment of the whole. There is no right of survivorship.

   2. The four unities are not required. A modern example of a tenancy in common is a condominium.

      • Example: Dan has a 90% interest in 10-acre estate, and Elaine has a 10% interest. Both are entitled to possession and enjoyment of all 10 acres of the estate.

2. Creation

   1. In modern times, a conveyance to two or more unmarried people is presumed to create a tenancy in common.

   2. A tenancy in common may also result from intestate succession or from a divorce that ends a tenancy by the entirety.

3. Transfer

   1. Tenants in common may devise, sell, lease, or mortgage their share of the estate without the consent of a co-tenant.

   2. No matter how a tenant in common conveys the estate, it still remains a tenancy in common.

4. Rights and duties of co-tenants

   1. Possession

      1. Each co-tenant is entitled to possession and enjoyment of the whole estate.

      2. If one co-tenant has exclusive possession, the other co-tenants are not entitled to rent.

      3. The ouster (wrongful exclusion) of a tenant does entitle that tenant to rent.

   2. Profits

      1. Each co-tenant is entitled to his/her share of the profits from the estate.

         • Example: Dan, Elaine, and Frank are tenants in common in Orangeacre. Dan has a 45% share, Elaine a 30% share, and Frank a 25% share. Each is entitled to profits in proportion to his/her share.

   3. Costs and repairs

      1. Each co-tenant must pay a share of the taxes and mortgage in proportion to his/her share.

      2. A co-tenant has a right of contribution for any repairs made that are agreed upon.

Termination of Concurrent Estates

1. Severance

   1. A joint tenant may sever the joint tenancy by conveyance without the consent or knowledge of the co-tenants. The joint tenancy becomes a tenancy in common.

   2. If one joint tenant undertakes a mortgage, the joint tenancy is severed.

2. Partition

   1. Joint tenants may agree to partition the property voluntarily or may seek judicial action.The property is then distributed among the joint tenants and a final accounting taken.

   2. A partition in kind is the physical division of the property; a partition by sale requires that the property be sold and the profits divided.