Concurrent Estates

a.       Tenants in common

                                                              i.      Separate but undivided interests in the property

                                                            ii.      These interests can be conveyed via deed or will

                                                          iii.      Each tenant owns an undivided share of the whole

                                                          iv.      NO right of survivorship

                                                            v.      When grant language is ambiguous, Cts favor tenancy in common

b.      Joint tenancy

                                                              i.      Right of survivorship

                                                            ii.      Tenants are regarded as a single owner, each owns the undivided whole

                                                          iii.      Since each tenant owns the whole property, when a tenant dies, interests are NOT transferred to the other tenants…because each tenants “owned” the whole property

                                                          iv.      When a tenant dies, their interest are extinguished

                                                            v.      4 unities, essential to a joint tenancy:

1.      Time- interests of ALL tenants must be acquired OR vest at the same time

2.      Title- ALL tenants must receive title from the same instrument, or joint adverse possession (ad possession gives “original title”). Intestate succession violates this unity

3.      Interest- ALL tenants must have equal undivided shares and identical interests, measured by duration

4.      Possession- ALL tenants must have the right to possess the whole property. However, one tenant can give exclusive possession to another

                                                          vi.      All it takes is one of the tenants to break one of the unities…then it becomes tenants in common

                                                        vii.      Joint tenancy avoids probate b/c no interests are being transferred…each tenant owns the whole

                                                      viii.      To create a joint tenancy, “to A and B jointly” is NOT enough.

1.      “to A and B jointly, not as tenants in common” is fine

2.      “to A and B jointly, with right of survivorship” is fine

c.       Tenancy by the entirety

                                                              i.      Can ONLY be created between husband and wife, divorce terminates the tenancy by the entirety

                                                            ii.      4 unities are required along with a 5^th: must be husband and wife

                                                          iii.      Husband and wife are considered to be ONE…therefore, only a conveyance by both husband and wife together can destroy the tenancy by the entirety

                                                          iv.      Only in some States

                                                            v.      Creditors cannot “force” a divorce in an effort to collect on a debt…creditors cannot demand that a tenancy by the entirety be broken up

d.      Probate

                                                              i.      Judicial supervision of the administration of a decedent’s property

                                                            ii.      Joint tenancy avoids probate b/c no interest passes on the joint tenant’s death

                                                          iii.      Joint tenant’s interest cannot pass by death…joint tenant’s interest ceases at death