Welcome back to the Dee dive. Today we are not just skimming
the surface of legal theory. We are wading into the swamp.
We are tackling property law. Mm, hmm.
And specifically, the chaotic, messy, and absolutely critical
world of concurrent ownership. The swamp is a good metaphor.
Or, you know, maybe a minefield, because on the surface this
topic looks easy. It does.
It feels intuitive. Right.
People share things all the time.
Roommates share apartments, Spouses share homes.
Business partners share warehouses.
It feels normal, but legally it is a minefield of archaic rules,
medieval formalism and modern equity all colliding at once.
I was looking through the stack of materials for this session.
We've got treatise excerpts, case law from Florida and
Pennsylvania, some really interesting law review articles
from Marquette, and it struck me, we usually think of owning a
house as a binary thing. It's mine or it's yours.
But this material suggests that sharing property is actually a
high stakes geometrical puzzle. That's exactly what it is.
It's a specific configuration of rights.
And you're right to highlight the stakes.
This isn't just about roommates splitting the cable bill.
Not at all. This is about what happens when
a business partnership dissolves or a marriage ends.
Or, and this is the most dramatic, when someone that is
when the configuration determines who walks away with
$1,000,000 asset and who walks away with absolutely nothing.
And that's our mission today. We are going to move beyond the
laypersons idea of Co ownership and really dissect the specific
legal architectures, the tendency in common, the joint
tendency and the tendency by the entirety.
And for the law students listening, or you know, the bar
exam candidates, we have a secondary mission, right?
This topic appears disproportionately on exams, and
you have to ask why. It's because it blends those
rigid, formal, almost medieval rules with these modern ideas of
fairness. It creates the perfect storm for
a complex fact pattern. A perfect storm.
So we're going to identify the magic words for creation, the
four unities that sustain them, and maybe most importantly, the
severance traps that destroy them.
OK, let's unpack this. We need to start at the absolute
foundation module one, the foundation and the tendency in
common before we get to the specific types.
What does concurrent ownership actually mean in a legal sense?
So at its simplest, it's when two or more distinct individuals
or entities, and it can be people or corporations, possess
legally recognized interests in the same parcel of land
simultaneously. OK, but here is the concept that
trips everyone up immediately, and it is the hallmark of of all
concurrent estates, the unity of possession.
The unity of possession. This is the concept that I think
breaks people's brains a little bit.
It's not intuitive. It is profoundly
counterintuitive. It means that each co-owner has
an undivided fractional interest in the whole.
Undivided being the operative word there.
That's the one you have to circle and underline.
Exactly. Let's play this out with a vivid
example. Suppose you and I buy a
sprawling 50 room mansion together.
I like this example already. Right.
And I put up 99% of the money and you put up 1%.
Now, common sense and perhaps your sense of fairness would
suggest that I get the 49 rooms, the pool, the kitchen and the
garage and you get, I don't know, the broom closet under the
stairs. That feels fair.
I paid 1%, I get 1% of the space.
My own little broom closet. And under the unity of
possession, that is legally wrong.
Completely wrong. Even with my 1% interest, I have
a legal right to possess and enjoy the entire mansion.
You, with your 99% interest, have a right to possess and
enjoy the entire mansion. So you can't draw a line on the
floor. No lines.
There are no his side or sidelines drawn in the deed.
We are both in the old language, seized of the whole.
So practically speaking, I can walk into the master bedroom,
sit on the bed and say I own an interest in every molecule of
this room, so I have a right to be here.
Technically, yes. In the absence of a private
agreement to the contrary, a contract between us, you have
the right to be everywhere on that property.
Now, obviously in the real world, people make agreements.
Sure, I'll take the upstairs, you take the downstairs.
Exactly. But those are private contracts.
That's contract law as far as property law is concerned.
Until we petition the land, we both own the whole thing.
Which sounds like a recipe for absolute chaos.
It often is. I mean it's a forced association
that relies on Co-op mission. When that cooperation fails, the
law has to step in, which is why we have partition rules.
The exit strategy. Right, the exit strategy, but
we'll get to that later. First we have to understand the
default entry point. Right.
So let's talk about that default setting.
If I just write AD that says to A&B and I don't say anything
else. I don't mention survivorship, I
don't mention marriage. It's just to A&B.
What do we have? You have a tendency in common or
a tick. This is the default estate in
American law. If a conveyance is silent or
ambiguous, the law presumes a tendency in common.
And why is that the presumption? Why doesn't the law assume we
wanted the stronger bond, like a joint tendency?
It's a very deliberate policy choice.
The law as a general rule disfavors the right of
survivorship, which is the key feature of joint tenancy.
And we'll get into that more, but survivorship is basically
the winner take all feature. Exactly.
It's a gamble. It means if I die, you get my
share and my heirs get nothing. My children get nothing.
My will is useless. The legal system has a very
strong preference for allowing wealth to pass down through
family lines through inheritance.
It wants to protect the heirs it.
Wants to protect the heirs, so to do that we default to the
tendency in common where there is no survivorship.
OK, so let's really break down the key characteristics of this
T thick. What are the three things a
student has to have in their notes?
1st and most importantly as we just said, no right of
survivorship. If a tenant in common dies,
their share goes to their heirs via their will, or if they have
no will through the state's intestacy rules, it does not go
to the other Co owners. So my share goes to my kids, not
to you. Correct second characteristic.
Transferability. Transferability interests are
freely alienable, devisable and inheritable.
You can sell your share to a stranger without asking the
other Co owners. You can leave it in your will.
You can give it away. Going back to our mansion, if I
get sick of living with you and I own 99%, I can just sell my
99% to a punk rock band that needs rehearsal space without
your permission. You absolutely can.
You don't need my permission. You don't even need to notify me
until it's done. You just sign a deed and now I
have a new roommate. And now I'm roommates with a
punk rock band. Exactly the new owner.
The band simply steps into the shoes of the seller, They take
your 99% undivided interest and they now have the unity of
possession regarding the whole house.
They can set up their drum kit in the living.
Room. Wow.
OK. And the third characteristic.
Unequal interests This is a key distinction from joint tenancy.
Tux shares can be unequal 991752560405050 It's very
flexible. The deed can specify the shares,
or if it's silent, courts will usually presume equal shares,
but they don't have to be. Got it before we move on to the
next estate. I saw a weird term in the
Marquette source Coparsony. It sounds like something from a
history book. It essentially is a fossil.
Coparsony is an extinct dinosaur of the common law.
It's a fun bit of trivia, but you won't see it in modern
practice. So what was it?
It dates back to the system of primogeniture where the eldest
son inherited everything, but the law had a problem.
What if a landowner died and had only daughters?
No sons to take the title. Exactly.
The law didn't want to choose just one daughter, and it
couldn't divide the land physically sometimes, so the
daughters would take the land together as Co parceners.
It was this unique estate because it arose from
inheritance from dissent, not from a deed.
So it was an inherited group ownership for women.
Pretty much, but today it's been effectively absorbed into
tendency in common. Modern intestacy statutes just
handle this now. So if a student sees Caparsney
on an exam. It's likely a distractor, a
trick, or a deep history question.
You should know what it was, but for all practical purposes just
treat it as a tendency in common.
It's a historical footnote. Got it.
RIP Caparsney. Now let's move to the main event
Module 2, the joint tendency. This seems to be where the drama
really happens. This is the exam favorite, the
joint tenancy or JT and it's defining all important feature
is the right of survivorship. The sources describe this as a
vanishing act. I like that imagery.
That's a perfect visual. Imagine two people A&B own a
house as joint tenants. When A dies, A's interest
essentially evaporates. It disappears into thin air.
B doesn't inherit it in the traditional sense.
B's existing interest just expands to exhort the whole.
B becomes the sole owner of what's left.
So A's interest is just gone, it doesn't pass to their estate.
Gone. It avoids probate because there
is nothing to pass through the estate.
The interest ceases to exist the moment A dies, and this leads to
what we call the grandmother's trap.
Yes, this is crucial for anyone listening.
A will cannot override a joint pendency.
It is legally powerless against it.
Wait, really? Let's role play this for a
second because this is so important.
Say grandma owns a house with her second husband as joint
tenants, but she hates him. Now she writes A valid will,
saying I leave my 1/2 share of the house to my beloved
granddaughter. She signs it.
It's notarized. She puts it in the safe.
She's done everything right. It doesn't matter, not one bit.
The moment grandma dies, the survivorship right kicks in
instantly. It happens by operation of law.
It's an automatic legal reflex. It moves faster than the probate
of the will. So the husband gets the whole
house. The husband gets the whole
house, the granddaughter gets a heartfelt letter and 0 property.
That is terrifying. The will is just a piece of
paper. Regarding that specific
property, yes, the will is ineffective because at the
moment of death, Grandma's interest vanished.
There was nothing left for the will to give away.
The subject of the gift ceased to exist.
So how do we spot this joint tenancy?
How do we create one? I know there's a mnemonic
involved here. There is.
This is pure common law formalism.
To create a joint tendency at common law, you need the four
unities. The mnemonic is TTIP.
TTIP. OK, let's walk through TTIP
slowly because this is where a lot of points are won or lost on
an exam. Absolutely.
So the first T is for time. All joint tenants must acquire
their interests at the exact same moment.
You can't have one person get title in 2020 and the other in
2024 and call it a joint tendency.
OK, time. What's the second T?
The second T is for title. All interests must be acquired
via the same instrument, the same deed, or the same will.
You can't have one person get their interest from deed A and
another from deed B. Got it.
Same moment, same document. What's the I?
I is for interest. The shares must be equal.
You can't have a 7525 joint tenancy, it has to be 5050.
Or if there are three people, 1/3 each, they have to be equal
in size and in duration. And finally, P.
And P is for possession, which is the right to possess the
whole. It's the one unity that all
concurrent estates share. So time, title, interest,
possession, if any of those are missing at the time of creation.
Then it fails. It's not a joint tendency.
The whole thing collapses and it defaults right back to a
tendency in common. OK.
But even if you have the unities, you need the magic
words, right, because of that presumption against survivorship
that we talked about. Precisely.
You cannot be vague. The law is hostile to
survivorship, so you have to be crystal clear that you intend to
create it. If a deed just says to A&B
gently, that is often not enough.
Why not jointly? Sounds pretty clear.
A court might read jointly to just mean together and to
protect the errors. They'll call it a tendency in
common to be safe and to get full credit on an exam.
You look for the magic words to A&B as joint tenants with right
of survivorship. You have to explicitly mention
survivorship. You have to call it out.
Some stance might even add and not as tenants in common.
You have to overcome that strong legal presumption.
Now I read about something called the straw man regarding
the unities. This sounds like a workaround
for when you mess up the time and title part.
It's an old, clever, and very formalistic workaround.
Here's the classic scenario. Let's say you own a house
already. You own it 100%.
We'll call you A. You get married and you want to
add your spouse B as a joint tenant.
OK, so I want to go from owning it alone to owning it with my
spouse, right? So if you just write a deed from
A to A&B as joint tenants, you've broken the unities.
Well, A had their interest from 10 years ago and B is getting
theirs today. No unity of time, and A is
conveying from himself while B is receiving.
So you could argue there's no unity of title from the same
source. The whole thing fails.
It becomes a tenancy in common. Exactly.
So the old common law fix was the straw man.
You would deed the house to a third party, your lawyer, a
friend, anyone. The straw man, then the straw
man would immediately, in a second transaction, deed it back
to you and spouse as joint tenants.
So you reset the clock. You reset the clock.
Now both of you received title at the same time from the same
document, the straw man's deed. The four unities are satisfied.
It's pure legal fiction, but it worked.
And modern trends, do we still need to do this?
In many states, no many statutes have been passed that
specifically abolish the need for a straw man.
They allow a direct conveyance from A to A&B to create a joint
tenancy. But on an exam, you need to know
why the straw man existed to satisfy the rigorous 4 unities
of the common law. OK.
So we've built the joint tenancy.
We have our TTIP, we have our survivorship now Module 3, how
do we destroy it? This is severance.
Fragile is the word you always see used to describe the joint
tendency. And it's true.
It is very easy to break to sever, and once you sever it,
you break one of the unities. The survivorship is gone
forever, and you're left holding a tendency in common.
What's the most common way to break it?
The easiest and most common is an inter vivos conveyance, A
sale during your lifetime. If A&B are joint tenants and A
sells for 1/2 share to C, the unities of time and title are
instantly broken. For everyone.
For CC got their title at a different time and from a
different instrument than B did, so C is now a tenant in common
with B. The survivorship feature between
them is destroyed. And B didn't have to agree to
that. A can just do it.
No consent needed. Severance can be unilateral and
often it can be secret. B might not even know about the
sale until A dies and suddenly C shows up at the funeral saying,
by the way, I own half the house now.
That's a brutal surprise it. Is.
It's complicated. This is a classic exam pattern.
What if there are three people? AB and C are joint tenants, each
with a 1/3 interest. A sells their share to D.
What happens now? OK, this is a great question.
It's called partial severance. A selling to D severs the joint
tenancy only as to that one third share.
So D comes in as a tenant in common holding a 1/3 interest.
D has no survivorship rights. OK.
So D is AT tie with B&C. What about B&C?
Well, B&C, they haven't done anything to break their unities
with each other. They still have the same time,
title and interest relative to one another, so B&C remain joint
tenants with each other for their combined 2/3 share.
So B dies tomorrow. C gets B's share via
survivorship. Now C owns 2/3 of the property
and D owns 1/3, and they are tenants in common.
That is wild. The estate kind of splits into
two different types of ownership existing at the same time.
Exactly. It's a hybrid.
OK, another way to sever is the contract for sale.
This seems less obvious. Right.
This relies on the doctrine of equitable conversion.
The idea here is that equity regards as done that which ought
to be done, meaning meaning in many states, the moment you sign
a binding contract to sell your share, even before the closing,
before the deed is handed over, equity regards the title as
already having been transferred to the buyer.
So the unity of title is effectively broken at the
contract signing. Correct.
The joint tenancy is severed then and there, even if the deal
falls through later. Now here's where it gets really
interesting and frankly, confused Using the mortgage.
This seems to depend entirely on where you were standing.
It does. This is a classic jurisdictional
split that you absolutely have to know for an exam.
It depends on whether you are in a title theory state or a lien
theory state. OK, break that down for us.
What's title theory? Title theory is the older
minority view today. In these jurisdictions, granting
a mortgage is seen as literally transferring the title to the
bank. You are giving the bank the
legal title and you're just keeping an equity of redemption.
The right to get the title back when you pay off the loan.
So if title is transferred to the bank.
The unity of title is broken the moment one joint tenant takes
out a mortgage. In a title theory state, the
joint tenancy is severed. Boom.
It becomes a tendency in common. Even if they pay it off the next
day. Even if they pay it off, the
severance is permanent. And in lien theory, which is the
majority rule? In a lien theory state, a
mortgage is just a lien. It's a security interest.
It's a cloud on the title, but it doesn't transfer the actual
title itself. So since title hasn't moved, the
unities remain intact. So taking out a mortgage does
not sever the joint tenancy, correct?
It doesn't. Now things can get weird if that
person dies before paying it off, but the act of mortgaging
itself does not sever. Wait, I saw a note about Georgia
and the source material. It's a lean theory state but it
does something unique. It mentioned a life estate
concept with mortgages. Yes, Georgia is a fascinating
specific case and it highlights just how nuanced this can and
get. So Georgia is a lean theory
state, which means the mortgage does not sever the tenancy.
However, the mortgage essentially attaches only to
that tenants life estate and their contingent remainder.
OK, translate that for us. What does that mean for the
bank? It means the bank is taking a
huge gamble if the tenant who took out the loan, the debtor
dies first. The other tenant gets the
property via survivorship, free and clear of the mortgage.
The mortgage just disappears. It vanishes along with the
debtors interest. The bank loses its security
because the property interest it was attached to evaporated.
This is the concept of non exoneration.
The surviving tenant takes the property and does not have to
pay off the dead tenants debt. That's an incredibly risky loan
for a bank in Georgia to make on a joint tenancy property then.
Extremely. But on the other hand, if the
debtor tenant outlives the other tenant and becomes the sole
owner, then the bank's mortgage suddenly attaches to the full
fee simple ownership. It's an all or nothing bet for
the lender. Let's talk about this secret
severance. This feels like the plot of a
legal thriller. The safe deposit box case
mentioned in the Marquette article.
This is based on real litigation and it's a perfect example of
someone trying to manipulate these old rules.
Imagine a joint tenant who wants to have it both ways.
He wants to sever the tendency so his heirs get his share if he
dies. So he wants to break the
survivorship for his own death. Right, But he also wants to keep
the survivorship right? In case the other tenant dies
first so he can take everything. He wants to have his cake and
eat it too. Exactly.
So he executes A deed to himself or to a straw man with the
intent to sever the tendency, but he doesn't record it, He
doesn't tell anyone. He just hides it in the safe
deposit box. What's the plan?
If he dies first, his heirs find the deed and say look,
severance, we inherit his half. But if the other tenant dies
first, he quietly takes the deed out-of-the-box, tears it up and
says look, we were joint tenants.
I get everything by survivorship.
Is that legal? It sounds like fraud.
Courts hate it, it's basically a fraud on the other tenants
survivorship rights. But it brings up a huge legal
question about self conveyance. Can you deed property from
yourself to yourself? To break a joint tendency.
We have a case on this in the stack in re State of Grant from
the Pennsylvania Supreme Court. This seems to tackle that
question head on, yes. This is a very recent and
critical case. In Grant, a mother tried to
sever a giant tendency she held with her son by executing a
quick claim deed from herself to herself.
Just to be clear, a unilateral act.
From me to me. No straw man, no third party.
Right. And she recorded it.
And the Pennsylvania Supreme Court said, no, it didn't work,
The severance was invalid. Why not?
Her intent was crystal clear. She wrote it down and recorded.
It Pennsylvania took a very old school formalist view.
They looked at the four unities. They said if I deed property to
myself, have I changed the time? No.
The title, no. The interest or possession?
No. Nothing has actually changed
hands. The unities weren't broken.
So no broken unity, no severance.
That was their first argument. Their second was that for a
severance to be valid, the ACT must be irrevocable.
You must be unable to retreat. If you just hold a deed to
yourself, you can always tear it up.
You haven't really committed to the act of transfer.
So in PA and jurisdictions like it, you still need a third
party, a straw man, or you have to sell to someone else to sever
if you're doing it unilaterally. That's what the court said.
You can't just talk to yourself on paper, but you have to note
that other jurisdictions take a more modern intent tent focused
view and might allow it. This is a classic jurisdictional
split that is perfect for an exam question.
OK. Moving on to Module 4, we've
done typic, we've done JT. Now the fortress tenancy by the
entirety or TBE. The marital fortress.
This is a specialized form of joint tendency available only to
married couples, and it's important to know it only exists
in about half the states. So it has the four unities, TDIP
plus one more. The 5th unity marriage and the
law is very strict about this. You must be legally married at
the time of the conveyance. What if a couple is engaged and
they buy a house as tenants by the entirety a week before the
wedding? It fails.
It's not a TBE. Depending on the state's law and
the language and the deed, it becomes either a tech or a
standard joint tenancy. The unity of marriage must exist
at the exact moment the deed is signed.
What makes it a fortress? What's special about?
It the protections are immense. In a regular joint tendency, one
person can sever it unilaterally by selling their share.
In TBE, there is no unilateral severance.
One spouse cannot sell, mortgage or transfer their share without
the other spouses express consent.
So you are locked in together. You are locked in.
One spouse can't secretly sell their half and leave the other
one with a new roommate. And the creditor protection.
This seems to be the biggest feature.
This is the big one, the shield. In most TBE jurisdictions, a
creditor of only one spice cannot touch the property.
Give us an example. Sure, the husband is a Doctor
Who gets sued for malpractice for a huge amount, or the wife
runs up massive gambling debts on her own.
The creditors for those individual debts cannot seize
the house if it's held in TVE. They can't force a sale.
They can't touch it. They can only attach the
property for joint debts, a mortgage both spouses signed, a
car loan they took out together. It's an incredibly powerful
asset protection tool. That is powerful.
I read in the Marquette article that some legal scholars think
this is unfair or anachronistic. Oh absolutely.
The article calls it an anachronism and it raises really
good policy question. Why should a married couple get
to shield their primary asset from legitimate creditors while
two sisters who have lived together for 40 years or a
committed same sex couple in a state before marriage equality
don't get that same protection? It privileges the institution of
marriage above other familial or long term relationships.
A really interesting point, but for now, if you're married and
in a TDE state, it's a huge benefit.
How do you end a tendency by the entirety?
Only three ways. One, death survivorship applies
just like AJT 2 mutual agreement.
Both spouses sign a deed to sell the property or change the title
and three divorce. What happens upon divorce?
Divorce automatically, by operation of law breaks the
unity of marriage. The fortress walls crumble.
The estate automatically converts to a tendency in
common. The shield is gone, Survivorship
right is gone. You are just two unrelated
people owning property together. All right, we've covered the
what the different types of ownership.
Now let's talk about the how Module 5 rights and duties, the
economics of Co ownership. This is where the real world
fights happen. This is all about the money.
And it usually starts with you're living there, I'm not, so
you owe me rent. And the standard legal answer is
no, I don't really. This goes right back to that
foundational concept, the unity of possession.
Since I have a legal right to possess the whole property, my
living there alone is not wrongful, I'm just exercising my
right. So the majority rule is that a
Co tenant in exclusive possession owes no rent to the
absent Co tenant. That feels profoundly unfair.
I'm paying for my own apartment somewhere else and you're living
in our jointly owned house for free.
It feels unfair, but legally you have the right to move in too.
You can show up with your suitcase tomorrow if you choose
not to exercise your possession right, That's on you.
Unless, and this is the big exception, unless there is
ouster. The Vine ouster for us.
Ouster is a wrongful exclusion. It's an affirmative act.
It's not just me living there. It's me changing the locks and
not giving you a key. It's me standing at the door and
refusing to let you in. It's me sending you a letter
explicitly denying your title to the property.
An actual act of keeping the other person out.
Yes, once ouster occurs, the clock starts ticking.
From that moment forward, the occupying tenant owes the ousted
tenant their share of the fair rental value of the property.
OK, what about money coming from other sources?
Let's say I'm living in the house alone, but I rent out the
spare bedroom. Ah, now that's different.
If a third party is involved and paying rent you have to share,
that's income derived from the property itself.
So if you rent out a room in our mansion to a stranger, you have
to give me my share of that rent.
Same if you start mining for gold on the property or cutting
down timber. Any profits that deplete the
Land's value must be shared. Now expenses Who pays the
mortgage in taxes? Those are called carrying
charges. These are the necessary costs to
preserve the ownership. Generally Co tenants must
contribute their proportional share.
If I pay the whole property tax bill for the year, I can sue you
for contribution for your half. Simple enough?
What about repairs? I noticed a leaky roof and spend
$5000 fixing it. Can I send you a bill bill for
2500? This is tricky, and the general
rule is surprisingly no, you don't have a direct right to sue
for contribution for necessary repairs during the tenancy.
Why not? The roof needed fixing.
The law is reluctant to let one Co tenant force another into
expensive repairs they might not agree on.
The proper procedure is usually to wait until the end until a
partition or a final accounting action to get credited for that
necessary expense. OK, so you get the money back
eventually, but not right away. What about improvements?
Not a repair but something new. I had a swimming pool.
For improvements, there is absolutely no right to
contribution. You improve the property at your
own risk and your own expense. You can't force me to pay for a
pool I didn't want. But if we sell the house and the
pool adds say $100,000 to the sale price.
Then you're in luck. In the partition action, you get
the increase in value that the pool caused.
Not the cost of the pool, but the value it added.
So if I spent 80,000 and it added 100,000 value, I get that
100,000 off the top before we split the rest.
Exactly. But be careful.
There's a downside. If your improvement actually
makes the property value drop, maybe it's a terrible, ugly
pool. You're liable for that loss.
That's called ameliorative waste.
Let's look at the Florida case, Barrow V Barrow.
This puts all this math into a real world context.
This is a great case study because it shows how courts use
equity to balance these strict rules.
It was a post divorce scenario. The husband and wife became
tenants in common of the former marital home.
The husband stayed in the house, the wife moved out.
A very common fact pattern. Very later the husband brought
an action saying, hey, for the past few years I've paid all the
mortgage, all the taxes, all the insurance.
You owe me your half. A standard contribution claim.
Right, a textbook claim for carrying charges.
But the wife's response was clever.
She said fine, I'll pay my share.
But you live there alone for all those years.
You owe me rent for my half of the house.
But wait, you just said there's no rent without ouster.
Was he ousting her? Did he change the locks?
No, there was no evidence of ouster.
She left voluntarily, so under the strict rule he didn't owe
her rent, but UT and this is the key holding and Barrow when the
occupying tenant, the husband, affirmatively asks the court for
contribution for expenses. When he's the one asking for
money. Yes, the court says OK, we need
to balance the equities. If you want money from her for
the bills, she gets to offset that claim with the fair rental
value of your sole occupancy. So she can't sue him for rent
directly as a sword, but she can use the rent value as a shield
to cancel out his bill for the taxes.
Exactly, it's a shield, not a sword.
The offset rule says his claim for contribution is reduced by
the value of the benefit he received from living there
alone. It ensures he doesn't get to
live rent free and have her pay half the bills.
It's an equitable balancing. That seems much more fair.
Finally, module 6 when it all falls apart partition.
Partition is the end game. It's the judicial mechanism to
end a Co tendency when the parties just can't agree
anymore. Any Co tenant has an absolute
right to demand partition. And there were two types, right
in kind and by sale. Correct, partition in kind is
the strong judicial preference. If it's possible the court wants
to physically divide the property.
You literally take the land and draw a line down the middle.
If it's 100 acre farm you get the N 50 acres.
I get the S 50 acres. No, we are neighbors not Co
owners. Courts like this because it
preserves land of ownership. Exactly.
It keeps people on their land, but that doesn't work for a
single family home. You can't saw a house in half
and give each person a working half right?
So if physical division is impractical, or if it would
greatly prejudice the value of the whole, the court will order
a partition by sale. They sell the whole thing and
split the money. Right.
The sheriff sells the house on the courthouse steps, or more
commonly now a realtor is appointed to sell it on the open
market and the cash is split according to the ownership
shares. And that's when the final
accounting happens. Yes, that's the moment of
reckoning. Before distributing the cash,
the court tallies up all those IO us we talked about who paid
the taxes, who collected rents from a third party, who made a
necessary repair, who made an improvement that added value.
All of those credits and debits are sorted out, and the final
payout from the sale proceeds is adjusted accordingly.
Wow, it really is a mathematical and legal web from start to
finish. So we've reached the end of the
modules. Let's do the outro.
Let's recap the strategy for our listeners.
Give them that exam checklist. OK, if you are facing a
concurrent ownership problem on an exam, you need a systematic
approach. Here's a four step framework.
Step one. Step one, identify the estate.
Look at the moment of creation. How is it made?
Do you have the four unities? Do you have the magic words for
survivorship? Are the parties married?
If they are, you need to be thinking TBE and always remember
the default if it's ambiguous, it's a tendency in common.
OK, identify the estate. What's next?
Step 2. Check for severance.
This applies mainly to joint tendencies.
Has anything happened since creation to break the unities?
Did someone sell their share? Did someone take out a mortgage
in a title theory state? Did someone try a sketchy self
conveyance like in the Grant case?
So has the nature of the ownership changed over time?
Precisely Step 3. Step 3.
Analyze the dispute. What is the fight actually
about? Is it about who can live there?
That's a possession and ouster issue.
Is it about money? If so, where's the money coming
from? A third party renter or profits
from the land? Or is it a fight over who should
pay for expenses? And that leads to the final
step. Step 4.
Apply the remedy Based on your analysis, what's the answer?
Are we splitting proceeds in a partition?
If so, you have to do the accounting.
Are we applying the borrow offset rule in a contribution
action or is someone dead and the answer is simply that
survivorship applies and one person takes all?
That is a solid practical framework.
Before we go, I want to leave the listeners with that
provocative thought. From the Marquette article.
We talked about tbe being for married couples only.
Right, the article really challenges that.
It asks why do we still use these medieval forms that are
tied so tightly to one specific type of relationship?
Why not modernize? And the author proposes A
familial residence exemption. Exactly.
Instead of basing these powerful protections on a marriage
license, base them on the function of the household.
Why shouldn't 2 elderly sisters who live together and have
supported each other their entire lives have the same
creditor protection for their home as a married couple?
Why shouldn't same sex couple or any long term committed partners
have that same security for their shared residents?
So it's a call to move away from marriage centric property law
toward home centric protections. It is.
It's an argument that the law should protect the stability of
the home regardless of the marital status of the people
living in it. Something to Mull over as you
study. It's a great reminder that
property law isn't just a set of abstract rules.
It reflects what society values and chooses to protect.
And those values can and maybe should change over time.
Thank you for diving deep with us today.
Until next time, keep your unities intact.
And watch out for those straw men.
Welcome to our deep dive on concurrent ownership.
Now this is a foundational, heavily tested topic on pretty
much any property exam. By the end of this, you're going
to have a really clear framework to analyse any question that
comes your way. So let's get started.
So picture this. It's a classic fact pattern.
You and a friend go in on a house together.
Then one of you dies. Who gets that person's share?
Well, the answer isn't simple at all.
It actually depends entirely on how you hold the title to the
property. And that's exactly what we're
here to master today. Here's our road map for this
session. First we'll look at the three
main ways to Co own property. Then we'll do a deep dive into
tenancy in common, which is the default, followed by its very
different cousin, joint tenancy. We'll cover how you can break a
joint tenancy that's called severance, and then we'll
outline the rights and duties Co owners have to each other.
We'll finish up by flagging the most common traps you'll see on
an exam. OK, let's start with the big
picture. When multiple people want to own
property at the same time, the legal system gives them three
main options. Getting these straight from the
gecko is your first and most important step.
So these are your three choices. You've got tenancy in common or
tick, you have joint tenancy or JT, and then there's a
specialized form called tenancy by the entirety, which you can
think of as a joint tenancy just for married couples.
We're going to focus mainly on the 1st 2:00 because that's the
core of what you'll be tested on.
All right, let's start with tenancy in common.
This is always your analytical starting point.
Why? Because it's the legal default.
If a deed or a will is silent, if it doesn't say anything else,
the law automatically assumes it's a tendency in common.
And that's the absolute crucial point.
If the document that created the ownership, the deed, the will
doesn't specify, a court will always, always find a tendency
in common. Each person owns a fraction of
the value, but, and this is key, has the right to possess the
whole thing. So what really defines a
tendency in common? Well, number one is the complete
lack of survivorship rights. Just think of a Co tenants
interest as any other asset in their estate.
It can be sold, it can be gifted, it can be passed down in
a will to their heirs, and as you can see, the shares don't
even have to be equal. Now this right here is a classic
exam trap. If one Co tenant is living on
the property and the others aren't, that is perfectly fine.
It does not trigger a duty to pay rent.
Liability for rent only kicks in when there is an actual wrongful
act of ouster, like changing the locks and telling your Co tenant
they can't come in. You have to be really careful to
distinguish between repairs and improvements.
Necessary repairs, You know, fixing a leaky roof?
That's a shared cost. A Co tenant who pays for that
can demand contribution from the others.
But improvements like adding a fancy new deck are considered a
unilateral risk. You can't force your Co tenants
to pay for your upgrade now. You might get credit for the
value it added if the property is later sold, but not before.
And don't forget, the law sees paying the mortgage and property
taxes as essential to preserving the property for everyone.
So just like with necessary repairs, if one Co tenant covers
more than their fair share of these costs, they always have a
right to get that money back from the others.
OK, let's pivot and turn to joint tenancy.
This way of owning property is completely different from a
tenancy in common, and it's all because of one powerful and very
heavily tested feature, the right of survivorship.
This, this is the magic of a joint tenancy.
When one joint tenant dies, their interest just vanishes.
It's automatically absorbed by the survivors.
It happens by operation of law, completely bypassing the whole
probate process. And get this, defeating any
conflicting language in a will, the will becomes irrelevant for
that property. So to create this really
powerful estate, the common law is very strict.
It requires what we call the four unities.
The best way to remember them is the mnemonic tip, tip, time,
title, interest, and possession. If even one of these is missing
when the property is acquired, the law says Nope, not a joint
tenancy, and it defaults right back to our old friend the
tenancy in common. And this is a perfect
illustration of the magic words you need, because courts
historically haven't been big fans of the right of
survivorship. You know, since it cuts out a
person's airs. You have to use crystal clear
express language like this to create one.
Any ambiguity is always going to be resolved in favor of a
tenancy in common. A joint tenancy might be
powerful, but it's also incredibly fragile.
It could be easily destroyed during the lifetime of the Co
tenants through an act we call severance.
Let's take a look at how that happens.
The key thing to get here is that severance is a one way St.
Once a joint tenancy is severed for a particular share, it is
gone forever. The right of survivorship is
permanently destroyed for that piece, converting it into a
plain old tenancy in common. Now remember, severance must
happen during the joint tenants lifetime.
That's what inter vivos means. Selling your share to someone
else is the classic example. A will, however, is always too
late. Survivorship is instantaneous at
the moment of death, so by the time the will is red, there's no
interest left for it to even act upon.
This example of partial severance is a very common exam
scenario, so let's walk through it.
AB and C start as joint tenants. A then sells her 1/3 interest to
an outsider, D. That act of selling severs A's
interest from the joint tenancy. So what's the result?
D now holds a 1/3 interest as a tenant in common with B&C.
But, and this is the tricky part, the relationship between
B&C is undisturbed. They remain joint tenants with
each other sharing the remaining 2/3 interest.
OK for exam purposes, this is a huge, huge issue.
Whether taking on a mortgage severs a joint tenancy depends
entirely on the jurisdiction. In a minority of states, called
title theory states, a mortgage is seen as a transfer of title,
which breaks the unities and severs the joint tenancy right
away. But in the majority of lean
theory states, a mortgage is just a security interest, not a
title transfer, so it does not sever.
This creates a wild result. If the tenant who took out the
mortgage dies, the survivor takes the whole property and
that mortgage is just wiped out. So now that we know how these Co
tendencies are created and how they can be destroyed, let's
just briefly cover the rules of the road, the ongoing rights,
duties and remedies that apply to all Co tenants while they're
living together. These are basically the tools
for managing the Co ownership relationship.
You've got accounting for profits if you're renting the
place out. There is contribution for those
shared costs we talked about. There are legal actions for
waste if someone damages the property.
And then there's the ultimate escape hatch for any Co tenant
who just wants out the absolute right to go to court and ask for
partition. All right, let's wrap this up by
flagging the most common errors students make on exams.
Mastering these distinctions is what's going to secure you those
top marks. Think of this slide as your
checklist for success #1 always start your analysis with the
default, which is tendency in common #2 Know your severance
rules. Cold especially that a deed
severs, but a will is totally ineffective #3 don't find an
ouster just because one person is living on the property.
And finally, if a mortgage shows up in the facts, you must
analyze the title versus lean theory split.
And that brings us to our final crucial point.
No one is ever truly trapped in a Co tendency.
The absolute right to bring a court action for partition
guarantees a way out. The court will either physically
divide the property or more commonly, order it sold and
divide the money. So always keep that in mind as
the ultimate backstop when you're analyzing these problems.