Concurrent Ownership and Marital Property: every key term you need (+ practice quiz)
25 flashcard terms for Property Topic 3, written to match the course framework. Study them here, then drill them as interactive flashcards, or test yourself with the 15-question quiz — free, no account needed.
A concurrent estate in which each cotenant holds a separate, undivided fractional interest with an equal right to possess the whole; shares may be unequal, are freely transferable, and pass to the owner's heirs or devisees at death.
Joint Tenancy
A concurrent estate held by two or more owners in equal shares with a right of survivorship, traditionally requiring the four unities and, in most states today, express language of survivorship in the creating instrument.
Four Unities
The common law prerequisites for a joint tenancy: time, title, interest, and possession. Interests must vest at the same moment, by the same instrument, be equal in size and duration, and carry equal rights to possess.
Right of Survivorship
The hallmark of joint tenancy and tenancy by the entirety: on one owner's death that interest is extinguished and the survivors hold the whole, so the interest passes outside probate and cannot be devised by will.
Straw Man Conveyance
The common law device of deeding land to a nominal third party who immediately reconveys to the intended joint tenants, manufacturing unity of time and title; most states have abolished the need for it by statute.
Severance of a Joint Tenancy
The destruction of a unity, most often by one joint tenant's inter vivos conveyance of her interest, which converts that share into a tenancy in common and eliminates survivorship as to that share.
Lien Theory of Mortgages
The majority view that a mortgage creates only a security interest and does not transfer title, so a joint tenant's unilateral mortgage does not sever the joint tenancy and the lien generally dies with the mortgagor.
Title Theory of Mortgages
The minority view that a mortgage passes legal title to the lender, which in strict application severs a joint tenancy because unity of title and interest are broken when one cotenant mortgages her share.
Harms v. Sprague
Illinois decision holding that in a lien theory state a mortgage granted by one joint tenant neither severs the joint tenancy nor survives the mortgagor's death, so the survivor takes the whole unencumbered.
Tenancy by the Entirety
A survivorship estate available only to spouses in about half the states, adding the unity of marriage; neither spouse may unilaterally convey, encumber, or force partition of the property.
Sawada v. Endo
Hawaii decision holding that entirety property cannot be reached by the creditor of only one spouse, protecting the family home from individual debts while creditors of both spouses jointly may still levy.
Partition in Kind
A physical division of concurrently owned land into separately owned parcels, historically the preferred remedy because it preserves each cotenant's ability to keep and use a portion of the land itself.
Partition by Sale
A court-ordered sale of the whole parcel with division of the proceeds, appropriate when physical division is impracticable or would materially prejudice the owners, and in practice the far more common outcome.
Delfino v. Vealencis
Connecticut decision reversing an order of sale and dividing the land physically where one cotenant lived on and operated a business from the property, illustrating the surviving preference for partition in kind.
Ouster
A cotenant's act of denying another cotenant the right to possess the common property; only after ouster does the occupying cotenant owe the excluded owner the reasonable rental value of the exclusive use.
Spiller v. Mackereth
Alabama decision holding that a cotenant in sole possession owes no rent absent ouster, and that a mere letter demanding rent or shared use does not establish the required exclusion or denial of entry.
Contribution Among Cotenants
The right of a cotenant who pays more than a proportionate share of taxes, mortgage installments, or necessary repairs to recover the excess from the others, usually by credit in a partition accounting.
Adverse Possession Between Cotenants
Because each cotenant has a right to possess the whole, possession alone is never adverse; the occupant must give clear notice of an ouster or hostile claim before the limitations period begins to run.
Dower and Curtesy
Common law support rights in a deceased spouse's lands: dower gave a widow a life estate in one third of the husband's inheritable realty, curtesy gave a widower a life estate in all of the wife's, usually conditioned on issue.
Elective Share
The modern statutory substitute for dower allowing a surviving spouse to reject the will and claim a fixed fraction of the decedent's estate, often calculated against an augmented estate to reach lifetime transfers.
Equitable Distribution
The prevailing divorce regime in common law property states, under which a court divides marital property fairly, though not necessarily equally, considering contributions, need, duration, and earning capacity.
Community Property
The regime of a minority of states in which the spouses own equal undivided shares of everything earned during marriage, while pre-marital acquisitions and gratuitous transfers remain the acquiring spouse's alone.
In re Marriage of Graham
Colorado decision holding that an MBA earned during the marriage is not divisible property because a degree has no exchange value and cannot be transferred, leaving reimbursement alimony as the remedy.
Elkus v. Elkus
New York decision treating the enhanced earning capacity of a professional career, there an opera singer's celebrity, as marital property to the extent the other spouse contributed to its development.
Marvin v. Marvin
California decision permitting unmarried cohabitants to enforce express contracts, and implied agreements or equitable theories, over property acquired during the relationship, so long as sexual services are not the consideration.