land and concurrent ownership

1. Summary of Estates in Land and Concurrent Ownership
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2. ESTATES IN LAND AND CONCURRENT OWNERSHIP OUTLINE
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Estates in Land
Life estate freehold and fee tail freeholds will be discussed.
I. Life Estate
A. A life estate is an interest in property which does not amount to ownership because it
is limited by the lifetime of an individual vested with the right to possess. A life estate
can be created by deed or lease.
B. The life estate is a form of freehold estate where interest in land lasts for the length of
the lives or one or more specified persons. This is a land estate with the potential of
enduring forever but yet can cease when the first fee tail stated does not have lineal
descendants who can succeed him in possession. The estate can also last until the
occurrence or nonoccurrence of an uncertain event such as a life estate pur autre vie
where interest in land holds for the life of another person.
C. An example of the language that effectively creates a life estate is the one used by
George Backer in the Backer v. Levy1 stating that “upon the decease of my said
beloved wife, I give, devise and bequeath the whole of my residuary estate, both real
and personal, to my children living at the decease of my wife, and to the issue of any
of them who may have died before her, in equal shares, per stirpes and not per capita."
D. An example of a language that terminates a life estate is “to grantee and his or her
heirs, but if the premises is used for commercial purposes, the grantor will reenter and
repossess.”
1Backer v. Levy, 82 F.2d 270 ( 1936 ).

3. ESTATES IN LAND AND CONCURRENT OWNERSHIP OUTLINE
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II. Fee Tail
A. A fee tail freehold is an estate which is subject to restrictions regarding who can
inherit a given property and when which is often construed by a deed or a will.
This is confirmed by the Gardner v. Anderson Trustee 2 where fee tail is defined
as follows “An estate tail or fee tail is a freehold estate in which there is a fixed
line of inheritable succession limited to the issue of the body of the grantee or
devisee, and in which the regular and general succession of statutory heirs at law
is cut off.”
B. This is a generally obsolete freehold estate where the duration of is measured and
depended on the lives of the lineal grantee.
C. An example of a language that grants tail to person K can be “to K and the heirs of
his body,” where the estate created will last as long as K’s bloodline is continued.
D. An example of language that effectively terminates a fee estate is “K and his
lineage so long as used non-commercial purposes”. This statement implies that the
estate becomes defeasible if used for commercial purposes.
Concurrent Ownership
I. Joint Tenancy
A. A form of concurrent ownership where the individuals have undivided interest in land and
a right to survivorship. For a joint tenancy to be created and continued, the following
unities should be satisfied:
i. Unity of Time – The joint tenants should acquire title at the same time
ii. Unity of Title – the joint tenants should acquire title by joint adverse possession or by
use of the same deed or will.
2Gardner v. Anderson, 116 Kan. 431, 227 P. 743 (I924)

4. ESTATES IN LAND AND CONCURRENT OWNERSHIP OUTLINE
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iii. Unity of Interest – each individual in the joint tenancy must have an identical interest
in the same estate implying that each all should own equal fractional shares.
iv. Unity of Possession – All joint tenants should have equal rights to possession of the
entire parcel.
B. Tenants in this form of concurrent ownership enjoy the right of survivorship where upon
the death of one joint tenant, the decedent’s interest in the estate is extinguished and the
ownership continues automatically in surviving joint tenant(s). The tenants have the
ability to sever where one joint tenant can unilaterally sever joint tenancy thereby creating
a tenancy in common instead. A tenant also has the right to convey the interest in estate to
a third party or himself.
C. An example of a language that can be used to create a joint tenancy is “we will be and
remain in Joint Tenancy until we sell the property for not less than $20,000. This was
evident in the McDonald v. Morley3 where all four unities existed and they agreed to form
a joint tenancy.
D. An example of a language or event that effectively terminate a joint tenancy is the one
expressed by the jury in the Swartzbaugh v. Sampson4 that “An estate in joint tenancy can
be severed by destroying one or more of the necessary unities, either by operation of law,
by death, by voluntary or certain involuntary acts of the joint tenants, or by certain acts or
omissions of one joint tenant without the consent of the other.
II. Tenancy in Common
A. A form of concurrent ownership where two or more people co-own the same parcel of
land with undivided interests whereby the fractional shares of each may be equal or
unequal in size and passable heirs or devisee.
3McDonald v. Morley, 15 Cal. 2d 409, 412
4Swartzbaugh v. Sampson, 11 Cal. App. 2d 451, 454 [54 P.2d 73]

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B. Each tenant is entitled to the right to unlimited possession and use of all of the
property irrespective of the size of the fractional shares. In addition, each owner has
the right to sell, gift, encumber and allow their interest to pass by will or intestate
succession to their devisees or heirs. The tenants will have the right of possession
even if they acquired at different times or ways. Although they have undivided
interests, their interests are not equal interests. Each tenant has the right to accounts of
profit created from the property and right to ask their co-owners for contribution
towards maintenance of the property
C. An example of a language that can create a tenancy in common is “To K and H as
tenants in common with no right of survivorship”. In the Dixon v. Davis5 the court
decided that the words `share and share alike’ means create a tenancy in common and
thus compelled the appellees to share one-fifth interest of their shares with the other
devisees.
D. An example of event that can effectively terminate a tenancy in common is when one
tenant in common terminate their lease without the participation of the other owner as
established in the McElwee v. DeVault6.
5Dixon v. Davis,. 155 So. 2d 189 (Fla. 2d DCA 1963)
6McElwee v. DeVault, 255 Iowa 30, 120 N.W.2d 451 (1963)