Cotenancy - Next Generation Bar Exam
- What right does each cotenant have to possession of the property?
- The right to possess and use the whole property. No cotenant may exclude another cotenant from any part.
- What is the general rule on a cotenant in sole possession owing rent to the other cotenants?
- The possessing cotenant owes no rent absent ouster or an agreement. Rents received from third parties must be shared.
- What is a tenancy by the entirety?
- A cotenancy between spouses with a right of survivorship that neither spouse can sever unilaterally. In most jurisdictions recognizing it, creditors of only one spouse cannot reach the property.
- A, B, and C hold as joint tenants. A conveys her interest to D. B then dies. What are the interests of C and D?
- C holds two-thirds and D holds one-third as tenants in common. A's conveyance severed her share; B's share passed to C by survivorship.
- What is the general rule on a cotenant's recovery of contribution for necessary repairs?
- The cotenant has no affirmative right to contribution for repairs, but receives credit in a partition or accounting. Contribution is generally available for taxes and mortgage payments.
- What four unities are required at common law to create a joint tenancy?
- Time, title, interest, and possession. Each joint tenant must acquire an equal interest at the same time by the same instrument with an equal right to possess the whole.
- What is the effect of one joint tenant's conveyance of the joint tenant's interest to a third party?
- It severs the joint tenancy as to that interest, making the grantee a tenant in common. The remaining joint tenants continue as joint tenants among themselves.
- What is the preferred remedy in a partition action?
- Partition in kind. Courts order partition by sale when division in kind is impracticable or unfair.
- What is the effect of a joint tenant's will devising the joint tenant's interest?
- It has no effect on the joint tenancy, because the interest ends at death. Survivorship operates at the moment of death, before the will takes effect.
- What is the modern presumption when a conveyance to two or more persons does not specify the form of cotenancy?
- A tenancy in common. Clear language, such as 'as joint tenants with right of survivorship,' is required to create a joint tenancy.
- What is the distinguishing feature of a joint tenancy?
- The right of survivorship. On a joint tenant's death, the interest passes to the surviving joint tenants automatically.
- Two cotenants own a house. One lives there alone and the other has never asked to move in. What does the possessing cotenant owe for occupancy?
- Nothing, because there has been no ouster. Each cotenant has the right to possess the whole.