Concurrent estate
A concurrent estate or co-tenancy is a concept in property law, particularly
derived from the common law of real property, which describes the various
ways in which property can be owned by more than one person at a given
time. The parties who own property jointly are referred to as co-tenants
or joint tenants. Most common-law jurisdictions recognize three kinds
of concurrent estate: tenancy in common, joint tenancy with right of
survivorship, and tenancy by the entirety. Many jurisdictions simply
refer to a joint tenancy with right of survivorship as a joint tenancy,
but a few U.S. States treat the phrase joint tenancy as synonymous with
a tenancy in common.
The type of ownership determines the rights of the parties to convey
their interest in the property to others, to will the property to their
devisees, or to sever their joint ownership of the property. Just as
each of these affords a different set of rights and responsibilities
to the joint owners of property, each requires a different set of conditions
in order to exist.
* 1 Rights and duties shared by all co-tenants
* 2 Tenancy in common
o 2.1 Destruction of a tenancy in common
* 3 Joint tenancy with right of survivorship
o 3.1 The four unities
o 3.2 Breaking a JTWROS
o 3.3 Effect of a mortgage
* 4 Tenancy by the entirety
Rights and duties shared by all co-tenants
Co-tenants, irrespective of the type of tenancy, share certain rights
to the property:
1. Each tenant has an unrestricted right of access to the property.
Where one co-tenant wrongfully excludes another from making use of the
property, the excluded co-tenant can bring a cause of action for ouster,
and may receive the fair rental value of the property for the time that
he was dispossessed. 2. Each tenant has a right to an accounting of
profits made from the property. If the property generates income such
as rent, each tenant is entitled to a proportion of that income. 3.
Each tenant has a right of contribution for the costs of owning the
property. Co-tenants can be forced to contribute to the payment of expenses
such as repairs, property taxes, and mortgages on the entire property.
Co-tenants do not have any obligation to contribute to any costs of
improving the property. If one co-tenant adds a feature that enhances
the value of the property, that co-tenant has no right to demand that
any others share the cost of adding that feature - even if other co-tenants
reap greater profits from the property because of it.
Furthermore, each co-tenant can independently encumber their own share
in the property by taking out a mortgage on that share; other co-tenants
have no obligation to help pay a mortgage that only runs to another
tenant's share of the property, and the mortgagee can only foreclose
on that share.
Finally, co-tenants owe one another a duty of fair dealing. Because
of this, any co-tenant who acquires a mortgage claim against the property
must give his co-tenants a reasonable opportunity to purchase proportionate
shares in that claim.
Tenancy in common
Tenancy in common is the default form of concurrent estate, in which
each owner, referred to as a tenant in common, is regarded by the law
as each owning separate and distinct shares which may differ in size.
This form of ownership is common where the co-owners are not married
or have contributed different amounts to the acquisition of the property.
Also, if joint owners had attempted to use another form of joint ownership
such as a joint tenancy with right of survivorship or a tenancy by the
entirety, and the effort was for some reason invalid, the joint owners
would then be tenants in common. If conclusive evidence is not available
of the desire to create a tenancy with rights of survivorship or a tenancy
by the entirety, courts will determine that a tenancy in common has
in fact been created.
Tenants in common have no right of survivorship, meaning that if one
owner dies, that owner's interest in the property will pass by inheritance
to that owner's devisees or heirs, either by will, or by intestate succession.
Destruction of a tenancy in common
Where the parties to a tenancy in common wish to destroy the joint interest,
they can do so through a partition of the property - a division of the
land into distinctly owned plots.
If the parties are unable to agree to a partition, any or all of them
may seek the ruling of a court to determine how the land should be divided
up, physically divide it between the joint owners (partition in kind),
leaving each with ownership of a portion of the property representing
their share. Courts may also order a partition by sale in which the
property is sold and the proceeds are distributed to the owners. [edit]
Joint tenancy with right of survivorship
A joint tenancy with right of survivorship or JTWROS is a type of concurrent
estate in which the joint owners have a right of survivorship, meaning
that if one owner dies, that owner's interest in the property will automatically
pass to the remaining owner or owners. On the death of one of the tenants,
the whole of the property passes to remaining tenant(s); this is the
"right of survivorship." The deceased tenant's property interest
simply evaporates by operation of law, and cannot be inherited by his
heirs (which means it avoids going through probate). Under this type
of ownership, the last owner living takes all.
It is important to note, however, that creditors' claims against the
deceased tenant's estate may, under certain circumstances, be satisfied
by the portion of ownership previously owned by the deceased, but now
owned by the survivor or survivors. In other words, the deceased's liabilities
can sometimes remain attached to the property.
This form of ownership is common between husband and wife, and parent
and child, and in any other situation where parties want absolute ownership
to immediately pass to the survivor. For bank and brokerage accounts
held in this fashion, the acronym JTWROS is commonly appended to the
account name as evidence of the owners' intent.
In order to create this type joint ownership, the party or parties seeking
to create it must use specific language indicating that intent. For
example, if Joey wishes to convey property for Kelly and Lisa to share
as joint tenants with right of survivorship, Joey must state in the
deed that the property is being conveyed "to Kelly and Lisa as
joint tenants with right of survivorship, and not as tenants in common."
The four unities
In order for a JTWROS to be created, the co-owners must share the "four
unities":
* Time = the property interest must be acquired by both tenants at the
same time. * Title = both tenants must have the same title to the property
in the deed - if the deed places a condition on one tenant and not the
other, they do not have the same title, and the attempt to create a
JTWROS is invalid. * Interest = both tenants must have the same interest
in the property - e.g. three owners each having a 1/3 interest. * Possession
= both tenants must have the right to possess the whole property - if
one owner can prove that he or she has been improperly excluded from
the property by the other, the JTWROS will be invalidated.
If any one of the four unities is missing, the JTWROS is invalid, and
becomes a tenancy in common.
Breaking a JTWROS
The co-tenant in property owned by a JTWROS can break the JTWROS as
to their interest in the property at any time by conveying their interest
in the property to another person. Under the old common law, this required
an actual exchange with a straw man - another person who would buy the
property from the co-tenant for some nominal consideration, then sell
it back to the co-tenant at the same low price. Many states now permit
a joint tenant to break the JTWROS without a straw man, simply by executing
a document to that effect - even if that owner does not inform the other
owners. In either case, the JTWROS will, again, revert to a tenancy
in common as to that owner's interest in the property.
It is important to note, however, that if there are three or more owners,
and only one of the owners breaks the JTWROS, the other owners remain
in the JTWROS as to each other. For example, suppose Joey, Kelly, and
Lisa own a piece of property as joint tenants with right of survivorship,
but then Joey conveys his share in the property to Ryan. If Ryan dies,
his 1/3 share will go to his heirs. But if Kelly dies, her 1/3 share
will go to Lisa, because they still owned their total 2/3 share in JTWROS.
Effect of a mortgage
Where one party takes out a mortgage on the jointly owned property,
this may break the JWTROS, depending on the law of the state. Some states
use a lien theory, which posits that the taking of a mortgage merely
places a lien on the property, leaving the joint tenancy undisturbed.
However, other states that use a title theory, contending that a mortgage
actually conveys title to the mortgagor until the mortgage is paid.
In such states, the taking of a mortgage by one owner breaks the joint
tenancy as to that owner.
A creditor's judgment lien is not enough, no severance, if debtor dies
before creditor sues, the creditor has no interest in the property left
to collect against.
Tenancy by the entirety
Tenancy by the entirety is a type of concurrent estate available only
to married couples, wherein ownership of the property is treated as
though the husband and wife are a single legal person. Like a JTWROS,
the tenancy by the entirety also encompasses a right of survivorship,
so if one spouse dies, the entire interest in the property passes to
the surviving spouse, without going through probate.
In order for a tenancy by the entirety to be created, the party or parties
seeking to create it must specify in the deed that the property is being
conveyed to the couple "as tenants by the entirety". Also,
the parties must share the four unities necessary to create a joint
tenancy with right of survivorship - time, title, interest, and possession
- plus a fifth unity, marriage. However, unlike a JTWROS, neither party
in a tenancy by the entirety has a unilateral right to sever the tenancy
by the entirety - if it is to be undone, or if any part of the property
is to be conveyed to another person, this must be carried out by both
husband and wife. A divorce breaks the unity of marriage, leaving the
default tenancy – a tenancy in common.
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Gulf Shores and Orange Beach Area Info
Climate
The Gulf Coast Area has a mild climate with an average annual temperature
of 67.4 degrees. The average temperature in January is 51.4 degrees.
The average temperature in July is 81.8 degrees. The average annual
precipitation is 67 inches, and the growing season is 292 days.
Education
Education is a fundamental block in building a bright future. The Gulf
Coast Area opened a brand new high school during 1999 in Gulf Shores
(ph. 251.968.4747). The area has two elementary schools; they are Gulf
Shores Elementary (ph. 251.968.7375) and Orange Beach Elementary (ph.
251.981.5662). Gulf Shores Middle School (ph. 251.968.8719) offers an
excellent curriculum in preparation for high school. All public schools
are part of the Baldwin County school system. If you are interested
in private education, you also have the option of Bayside Academy (ph.
251.955.5211), which includes age 3yrs – Grade 4.
Healthcare
The nearest hospital is South Baldwin Regional Medical Center (ph. 800.580.3627)
located in Foley. South Baldwin Medical Center offers 24-hour emergency
services (ph. 251.952.3400). Numerous medical professionals practice
in the area providing both family practice and specialized care.
Airports
Corporate and Private air service is available in Gulf Shores from the
Jack Edwards Municipal Airport, with a full Instrument Landing System
and the longest paved runway being 7000 feet. The closest commercial
air service is available in Pensacola, roughly 30 miles away, at the
Pensacola Regional Airport (ph. 850.435.1746). Major carriers serving
the airport are Continental, US Airways, Delta, Northwest, and American.
Other commercial airports are located in Mobile (ph. 251.633.0313) and
Gulf Port, Mississippi (ph. 228.863.5951).
Shopping
The area offers many shops ranging from casual apparel and beachwear
to upscale fashion and specialty boutiques. If you are a bargain hunter,
you can find 120 factory outlet stores in Foley.
Parks and Recreation
The nearest state park is the Gulf State Park (ph. 251.948.7275). The
6,000-acre park area offers campsites, picnic areas, 18-hole golf course,
825 foot fishing pier, 144 room hotel and convention center. Other parks
in the area include Bon Secour Wildlife Refuge (ph. 251.540.7720), Meyer
Park (ph. 251.968.4420), Johnnie Sims Park and Kids Park (ph. 251.968.4420),
and Wade Ward Nature Park (ph. 251.968.4420).
State/Local Income Tax
For detailed information about Alabama income tax, contact the Alabama
Department of Revenue, Individual and Corporate Tax Division (ph. 251.242.1000).
In most instances, local governments in Alabama do not levy city, town,
or county income taxes.
Property Taxes
Property (Ad Valorem) taxes are taxes on real business and/or personal
property. “Ad Valorem” means “according to value”.
For details, call the Revenue Commissioner’s office (ph. 251.943.5061,
ext. 2840).
