Concurrent Estates 1
What is a concurrent estate?
A concurrent estate is when two or more people have equal right to possess and use the same property at the same time. These rules commonly apply when 1) two or more people buy a piece of property together with the intent of living in it together, or 2) property passes other than by sale to two or more people (intestacy or by will).
Under the common law, three types of concurrent estates still exists, which include (1) tenancy in common, (2) joint tenancy with right of survivorship (“joint tenants”), and (3) tenancy by the entirety.
What is joint tenancy with right of survivorship?
Joint tenants with right of survivorship is where each tenant has the right to possess all of the property concurrently and has an undivided interest in the whole that, upon the death of one of the co-tenants, passes entirely to the remaining joint tenants (therefore, while it is alienable, it is not devisable or descendible).
The parties must meet the four unities test: 1) time; 2) title, 3) interest; and 4) possession.
What is coveture?
The husband had absolute control over a wife’s property. The wife might own a dress, but the husband has the power to control it, as the husband and wife were one person in the husband. Wife had no power over the property, until the husband died.
What is the magic words in dower?
Magic words: “with all my worldly goods I thee endow” in the marriage ceremony. It is a grant of property rights
What is a tenancy in common?
Tenancy in common is when Each tenant has the right to possess all of the property concurrently and has an undivided interest in the whole that is alienable, devisable, and descendible. Interest doesn’t need to be equal. There is a presumption in creation.
What do each of the 4 unities elements mean?
1) time: when joint tenants acquired their concurrent interests at the same time
2) title: when joint tenants acquired their concurrent interests under the same instrument
3) interest (quantity): when each joint tenant had an identical percentage share of the concurrent estate
4) possession(quality): each joint tenant had an identical share respecting duration, quality and right to possession.
What is dower?
A surviving widow has the right to a life estate in a physical ⅓ of 1) all lands of which 2) her husband was seized of a 3) legal estate, 4) at any time during the marriage, in which he had 5) an estate inheritable by issue of the marriage.
What is the difference between Dower inchoate and Dower consummate?
Dower inchoate: wife’s rights before the husband died
Dower consummate: wife’s rights after the husband died. Wife became dowager
What is a tenancy by the entirety?
A special form of joint tenancy that is available only to married couples (typically used to purchase the family home). The parties must meet the Four Unities Test + unity of person (marriage, civil union, domestic partnership, etc.). ONLY divorce Severs a tenancy by the entirety.
What occurs if one of the 4 unities is not met?
Severance: when one of the 4 unities are destroyed, severance converts a jtw/ros into a tenancy in common (always check for severance)
What is an example of an estate not capable of inheritance?
Life estate. If a husband holds a land for life that is not capable of inheritance by issue of their marriage and therefore is not subject to the right of Dower
Generally what is the difference between common law and community property?
Common Law - married individuals each own their own property. Elective Share (death) - may disavow will, and take statutory share, usually between ⅓ to ½ of the estate. Equitable Distribution (divorce) - Property acquired prior to the marriage, gifts, and inheritance are exempt. All other, marital, property is subject to equitable division.
Community Property - all community property owned 50/50. Separate property exception: Property acquired prior to the marriage, gifts, and inheritance are exempt.
Co-tenants have certain property rights that can be exercised through three different causes of action: accounting, contribution, and partition. What is accounting?
Accounting is an equitable action, brought against a fiduciary to compel him or her to account for his or her actions as a fiduciary. A fiduciary is someone who has a duty that was created to act primarily for another’s benefit.
Co-tenants have certain property rights that can be exercised through three different causes of action: accounting, contribution, and partition. What is contribution?
Contribution is a Legal action brought to force a co-tenant to reimburse the other for costs.
If both co-tenants are using the property, and the cost is a mandatory cost (if not paid will result in loss of legal right to possession), then the co-tenant who has paid the cost may sue the other for contribution.
If both co-tenants are using the property, and the cost is an optional cost, then neither co-tenant can sue the other for contribution.
If the paying co-tenant is in possession, and the other is not, there is no cause of action for contribution for mandatory costs except if the mandatory costs were more than the fair rental value of the property, the paying co-tenant is entitled to the excess.
Neither co-tenant may sue the other in contribution for improvements.
What if the husband sells the land?
The land is still subject to the wife’s right of dower
Huge security blanket, because even if husband lost everything, the wife still entitled to 1/3 of all the property
Land couldn’t be sold by husband without wife’s consent
Superior to the claims of the husband’s creditors
1. O conveys Blackacre to A and B as jtw/ros. A dies, survived by his Wife and B. Can Wife claim common law dower in Blackacre?
2. O is the sole owner of all common stock of a real estate corporation. Can Wife claim common law dower in stocks?
1. No - dower does not apply to jtw/ros because it is not inheritable
2. His wife has no dower rights because stock is personal property, not real property.
Co-tenants have certain property rights that can be exercised through three different causes of action: accounting, contribution, and partition. What is partition?
Involuntary Partition is an Equitable action brought to force division of the property when the co-tenants no longer get along and cannot agree. Almost always accompanied by a cause of action for accounting to make adjustment for unequally shared repair/improvement costs.
Voluntary Partition: the parties can always come to an agreement re: partition without the aid of the court if they so choose.
Under accounting, One of the co-tenants is living on the property and the other is not. Should the co-tenant living on the property have to pay rent?
Majority rule: No. When living on the land, the co-tenant is exercising his right to live off the land. Exception: But if the co-tenant ousts the other then the ouster is entitled to file an action of accounting to get his share of the rent in an action for “Mesne” Profits
Minority rule: Yes. The co-tenant not living on the land is entitled to seek an action for “Mesne” profits.
Action for “Mesne” Profits. Action for value of use of land. An action to get profits where the value receiving from the land is not from rent. There are two ways to get mesne profits & that is through the exception in the majority rule and the other is through the minority rule.
H and W are married and domiciled in a state that recognizes dower rights in both spouses, regardless of gender. For his birthday, H's parents give him a fee simple absolute in Blackacre – 300 acres of wooded land in that same state. Sometime later, H dies. What interest, if any, does W hold in Blackacre? Ignore any interest W might acquire under H's will, the intestacy rules, or the elective share rules.
A life estate in 100 acres of Blackacre
Under dower, the surviving widow is entitled to a life estate in one-third of (1) all lands (2) of which her spouse was seized (3) of a legal (but not equitable) estate (4) at any time during the marriage and (5) in which he had an estate capable of inheritance by issue of their marriage. Blackacre was (1) real property, (2) of which H was seized, (3) of a legal estate (4) during their marriage and (5) in which H had an estate capable of marriage by issue of their marriage. Therefore, W obtained dower in Blackacre – that is, the right upon H's death to a life estate in one-third of Blackacre, ignoring any interest she might acquire under H's will, the intestacy rules, or the elective share rules.
H and W are married and domiciled in a state that recognizes dower rights in both spouses, regardless of gender. For his birthday, H's parents give him a life estate in Blackacre – 300 acres of wooded land in that same state. Sometime later, H dies. What interest, if any, does W hold in Blackacre? Ignore any interest W might acquire under H's will, the intestacy rules, or the elective share rules.
None
Under dower, the surviving widow is entitled to a life estate in one-third of (1) all lands (2) of which her spouse was seized (3) of a legal (but not equitable) estate (4) at any time during the marriage, and (5) in which he had an estate capable of inheritance by issue of their marriage. Because a life estate is not capable of inheritance by issue of H's and W's marriage, W did not obtain any dower rights in Blackacre. If we ignore any interest she might acquire under H's will, the intestacy rules, or the elective share rules, W retained no interest in Blackacre.