Property Law Lecture Four: Concurrent Ownership and Marital Property

Seven-Lecture Series on Property Law Series Roadmap

https://drive.google.com/file/d/1ceyxXw7KilPSTUMFf_Y8r6ktEzM_gm1Q/view?usp=sharing

The following are the unique links and domain names found in the provided source material:

• https://civil.sog.unc.edu

• https://en.wikipedia.org/w/index.php?title=Concurrent_estate&oldid=1300914748

• https://en.wikipedia.org/w/index.php?title=Four_unities&oldid=1239034380

• http://www.irs.gov/irm/part25/irm_25-018-001.html

• andysirkin.com

• BarExamToolbox.com

• lexjuris.com

The podcast provides an overview of concurrent estates (or concurrent ownership), which is when two or more people own property simultaneously. In this type of ownership, co-tenants have an absolute right to possess and use the entire property, regardless of their specific fractional ownership shares.

The three major forms of concurrent ownership discussed are:

💡 Tenancy in Common (TIC)

• Default Form This is the default form of concurrent ownership; a conveyance to two or more people is presumed to be a TIC if no other form is specified.

• Ownership Tenants can hold unequal fractional ownership shares.

• Survivorship There is no right of survivorship; ownership interests are inheritable and pass to the tenant's heirs upon death.

• Transferability Tenants have the unilateral right to sell, transfer, devise, mortgage, or lease their individual interest without impacting other co-tenants.

• Termination A TIC can be severed if one tenant sells their interest to the other, if all tenants agree to sell the property to a third party, or through a court-ordered partition.

💡 Joint Tenancy (JT)

• Creation Requires specific survivorship language and the satisfaction of four unities:

1. Possession: Equal right to possess the entire property.

2. Interest: Equal ownership interests must be granted (e.g., three joint tenants must each own one-third).

3. Time: The property must be conveyed to all co-tenants at the same time.

4. Title: The property must be conveyed through the same legal instrument.

• Survivorship Includes a right of survivorship, meaning that when one joint tenant dies, their interest automatically passes to the surviving joint tenants, superseding any provisions in a will.

• Severance A joint tenant has the unilateral right to sell their interest, but this action will sever the joint tenancy (by breaking the unities of time and title), converting the interests of the transferring party and the transferee into a tenancy in common.

💡 Tenancy by the Entirety (TBE)

• Scope This form of concurrent ownership is available exclusively between spouses.

• Creation Requires the four unities of a joint tenancy plus a fifth unity: unity of person (requiring the tenants to be married at the time of conveyance).

• Management The married couple is legally seen as one entity; consequently, there is no unilateral right for one spouse to sell, mortgage, lease, or transfer the property. Any unilateral sale is invalid.

• Termination TBE can be terminated by mutual agreement to sell, agreement to restructure the ownership, or by divorce (which breaks the unity of person).

This conversation delves into the intricacies of co-ownership, particularly focusing on the concept of survivorship. It highlights the significance of the right of survivorship in property law, explaining how it affects the distribution of ownership upon the death of a co-owner. The discussion emphasizes the practical implications of these legal concepts, especially in avoiding probate and ensuring a smooth transfer of property rights.

Takeaways

The right of survivorship is crucial in co-ownership.

Survivorship allows automatic transfer of ownership upon death.

Joint tenancy bypasses the will process.

Tenancy by the entirety is exclusive to married couples.

Understanding these concepts is vital for estate planning.

Probate can be avoided with the right of

co-ownership, survivorship, probate, tenancy, joint tenancy, estate planning, heirs, property law