Property Law: Joint Tenancy and Mortgages

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Questions and Answers

What is the result of a joint tenant executing a contract to convey their property interest in most states?

No effect on the joint tenancy

Conversion to tenancy in common

Severance of joint tenancy (correct)

Loss of right of survivorship

In which states does the granting of a mortgage by a joint tenant constitute a transfer of title?

Lien theory states

All states

Title theory states (correct)

None of the states

What is required to effect a severance of joint tenancy in the case of a judicial lien?

Execution of a contract to convey

Imposition of the judicial lien

Levy and sale of the property interest (correct)

Death of the joint tenant

What happens to the property interest of a deceased joint tenant if a judicial lien was imposed against them prior to their death?

The remaining joint tenants are entitled to it by right of survivorship Signup and view all the answers

In which states does a contract to convey property held in a joint tenancy executed by all joint tenants not effect a severance?

Some states Signup and view all the answers

What is the result of a joint tenant granting a mortgage in a lien theory state?

No effect on the joint tenancy Signup and view all the answers

What happens to the joint tenancy if one joint tenant grants a mortgage and there are more than one remaining joint tenants?

The remaining joint tenants continue to hold their property interests with each other as joint tenants Signup and view all the answers

What is the effect of a contract to convey executed by all joint tenants in some states?

Severance of the joint tenancy only upon transfer of the property Signup and view all the answers

What is the minimum requirement for a tenancy in common?

Unity of possession only Signup and view all the answers

What is the traditional method for a fee simple owner to create a joint tenancy with one or more other persons?

Transfer the property to a 'strawman' who then transfers it to the joint tenants Signup and view all the answers

What is the result of severance of a joint tenancy?

It converts the joint tenancy into a tenancy in common Signup and view all the answers

What is the unity that is related to the right to possess or use the property?

Unity of possession Signup and view all the answers

In which type of tenancy do the owners have the right of survivorship?

Joint tenancy Signup and view all the answers

What is the traditional requirement for creating a joint tenancy?

Unity of possession, unity of interest, unity of time, and unity of title Signup and view all the answers

What happens to the joint tenancy if one of the joint tenants conveys their interest to another person?

The joint tenancy is converted into a tenancy in common Signup and view all the answers

In which jurisdictions can joint tenants own unequal interests?

Some jurisdictions Signup and view all the answers

What happens to the joint tenancy when one joint tenant leases their interest in the property?

The joint tenancy is automatically severed. Signup and view all the answers

What is the 5th unity required for a tenancy by the entirety?

Unity of person Signup and view all the answers

What happens to the joint tenancy when one joint tenant intentionally kills the other?

The joint tenancy is automatically severed. Signup and view all the answers

What is the presumption in states that recognize tenancy by the entirety?

A conveyance to a married couple creates a tenancy by the entirety. Signup and view all the answers

What is the effect of a voluntary alienation by one spouse on a tenancy by the entirety?

The alienation is void. Signup and view all the answers

What happens to the joint tenancy when one joint tenant conveys their interest to a third party?

The joint tenancy is severed. Signup and view all the answers

What is the right of survivorship in a joint tenancy?

The right to inherit the property upon the death of the other joint tenant. Signup and view all the answers

What is a tenancy in common?

A type of co-ownership where each co-tenant has an undivided interest in the property. Signup and view all the answers

Study Notes

Joint Tenancy

A joint tenant can sever a joint tenancy by executing a contract to convey their property interest in most states.
In some states, a contract to convey property held in a joint tenancy executed by all joint tenants does not sever the joint tenancy, severance occurs only upon transfer of the property.

Mortgages

A joint tenant can grant a mortgage in their joint tenancy interest.
In lien theory states, the mortgage is only a lien on the property, and severance occurs only upon a foreclosure sale following a default.
In title theory states, the granting of a mortgage by a joint tenant constitutes a transfer of title, severing the joint tenancy and converting it to a tenancy in common.

Judicial Lien

A judicial lien imposed on the property interest of a joint tenant does not sever the joint tenancy in most states.
A levy and sale of the property interest are required to effect a severance.
If the joint tenant against whom the lien is imposed dies before the sale, the remaining joint tenants are entitled to the property interest by right of survivorship.

Leases

There is a split among jurisdictions on how to handle joint tenancies when one joint tenant leases their interest.
Some jurisdictions hold that the lease destroys the unity of interest, severing the joint tenancy, while others believe the lease merely temporarily suspends the joint tenancy, which resumes upon expiration of the lease.

Intentional Killings

In some states, when one joint tenant intentionally kills another, the felonious joint tenant holds the property in constructive trust for the deceased joint tenant's estate.
In other jurisdictions, statutes sever the joint tenancy upon a felonious killing of one joint tenant by another.

Tenancy by the Entirety

Tenancy by the entirety is a joint tenancy between married persons with a right of survivorship.
The same rules for joint tenancy apply, plus the joint tenants must be married when a deed is executed or conveyance occurs (the fifth unity—unity of person).
Neither spouse can alienate or encumber the property without the consent of the other.

Rights and Obligations

The four unities required for a joint tenancy are: unity of possession, unity of interest, unity of time, and unity of title.
The modern trend focuses on the intent of the parties if the language creating the tenancy is unclear.
Unlike a joint tenancy, a tenancy in common requires only the unity of possession.

Conveyance by Current Fee Simple Owner

Traditionally, the fee simple owner of real property cannot directly create a joint tenancy with one or more other persons.
To overcome this problem, the fee simple owner can transfer the property to a "strawman," who then transfers the property to the owner and the other persons as joint tenants.
Many jurisdictions now permit the fee simple owner to forego this formality and directly create a joint tenancy with one or more other persons.

Unequal Interests

Some jurisdictions permit joint tenants to own unequal interests.

Severance

The severance of joint tenancy may occur in several ways, and converts the joint tenancy into a tenancy in common.
If there are more than two joint tenants, a severance does not automatically affect the joint tenancy of all joint tenants.

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Description

This quiz covers the concepts of joint tenancy, mortgages, and property conveyance. Learn about the rights and obligations of joint tenants and the laws governing property ownership.