9) Concurrent Flashcards
remedies when concurrent ownership goes bad (or at severence)
partition accounting
abandonment
opposite of ouster–you DN owe rent to someone who isn’t living there bc they abandoned
income from SP
–remains in SP –exception: husband spends all his time manging his SP stock portfolio…profits become CP bc of the effort he spent on it during the marriage
JT: leases, mortgages, and severance…
W: leases and mortgages DO NOT sever JTs (so when person who leased it to you dies you lose your share, survivorship was intact)
Homestead laws
in most states protect interests of survivng spouse/children from claims of credtiors, ko like life estate
concurrent owners; expenses/burdens, how, and which? (4)
share by fractional division: mortgage, property taxes, insurance, maintenance and necessary repairs No duty to share costs of UNNECESSARY IMPROVEMENTS unless you agree
separate property states – on divorce (inc 4 factors)
equitable distribution based on economic need, status, rehabilitation, sometimes fault
Joint tenancy: survivorship etc
Survivorship: YES u. transfer: YES u. termination: YES u. encumbrance: YES *BUT can’t encumber co-Ts interest on survivorship
Carr v. Deking
F: P owner was TIC with dad who executed lease w D lessee w/o P’s knowledge or consent H: TICs can use, benefit from, posess entire property so ok to lease your interest. Remedy is partition
Tenhet v. Boswell
F: P had joint tenant who leased his share to D and then died. H: lease made by joint-T can’t survive joint T’s death bc that would destroy co-joint-T’s right of survivorship (so it was mroe like a life esatte PAV)
concurrent ownership expenses and burdens – EXCEPTION
No duty to share costs of UNNECESSARY IMPROVEMENTS unless you agree
Joint tenancy: requirements to create
TTIP: unity of: Time (all created at same time, like privity) Title (all created at same time) Interest (must have equal fractional unidivided interest in property and they must all last same amt of time) Possession: all have right to possess entire parcel
joint tenancy; severance (3)
you can transfer your property interest and this ends the right to survivorship self-severance allowed note: if A, B, C, D each have 25% and A sells his share to B then it’s not that B now has 50% – he has 25% as JT and 25% as TIC
constructive ouster
sometimes divorce otherwise impossible to both live there (eg small cottage) physical abuse
divorce: business goodwill
can be dividied in may states enterprise good will (divisible–the kind that would still exist if you sold the business) vs personal good will (eg dentist): not devisible
tenancy in common: survivorship/etc
survivorship: no unilateral termination: yes unilateral encumberance: yes
ouster: rent? and why?
the situation where concurrent owners do have to pay each other rent – bc you took the other co-T’s right to possession
O’Brien v. O’Brien
F: P husband and D wife are divorcing after D spends 9 years working while P was in med school H: med license is subject to equitable distribution (NY statute ‘property of any form’)
divorce and professional licenses: minority rule
she invested and should get fair returns O’Brien v. O’Brien
AP and ouster?
hard to prove, each entitled to legally occupy the property would have to put on notice that you are asserting full ownerhsip rights over the other one
concurrent ownership, possession, and rent (3 scenarios)
normally no rent owed bc each has undivided right to possess the whole BUT if only one is living there and no rent, must pay all the expenses if value of occupation exceeds the payments DO PAY RENT IF OUTSTER
concurrent ownership and trespass
each has undivided right to possession so each can invite others in, even if other objects
tenancy in common: def and ex.
default form O to A and B (as Ts in common) ok different fractional shares
joint bank accounts
usu dn require 4 unities but does have survivorship
separate property states – exception to the separateness
ok share if you choose and obligation to support spouse
divorce and professional licenses: majority rule
not property (bc: no traditional property interest, not alienable, acq’d by work not just $, can’t really determine value) BUT STILL: contributions towards getitng license/degree and opportunity cost of not pursuing greater earning potential should lead to greater support or lump sum award
Tenancy by the entirety: def
–only for married couples –W: choose into it, not default
concurrent ownership (3)
each T has right to possess the entire parcel all have to share (proportionally by % ownership) any profits, and contribute to costs can always k-around, these are just defaults
concurrent ownerhsip: how much rent?
only 1/2 FMV (person you’re paying only has 1/2 interest in property)
com property – what can you do w/ it? (4)
–each spouse owns 1/2 undivided interest in all the CP –each is fiduciary to other (must act in good faith for benefit of both) –often both must sign for somethign big like house –different rules re how creditors get at your idividual debts
F: P owner was TIC with dad who executed lease w D lessee w/o P’s knowledge or consent H: TICs can use, benefit from, posess entire property so ok to lease your interest. Remedy is partition
Carr v. Deking
Uniform Prenupital Agreement Act (some jurisdiction) – 3 requirements for it to be unenforceable
unconscionable when made AND no full disclosure AND no written waiver of rigths
marriage: separate properrty states
your SP: all the property/debt you bring into marriage and anything YOU earned after marriage
joint tenancy: survivorship - meaning
when JT dies, paroperty goes to remaining JTs in equal shares if you sever, other owners still have survivorship among themselves
community property: what’s still separate?
1) property acq’d before marriage 2) property acq’d during marriage VIA: gift devise bequest descent 3) debt (usu, more compicated if post-marriage)
transmutation
spouses can convert CP to SP and vice versa, eg by prenup
F: P had joint tenant who leased his share to D and then died. H: lease made by joint-T can’t survive joint T’s death bc that would destroy co-joint-T’s right of survivorship (so it was mroe like a life esatte PAV)
Tenhet v. Boswell
concurrent ownership and marriage
don’t assume you have both…can have married couple where house is husband’s SP
W’s marriage schema
community property
F: P husband and D wife are divorcing after D spends 9 years working while P was in med school H: med license is subject to equitable distribution (NY statute ‘property of any form’)
O’Brien v. O’Brien
community property: what’s the community property? (2 and a note)
earnings of each spouse during marriage all property acquired w those earnings can get complicated w mixed assets (eg you might retain a % interest in the house if you made the DP with SP)
jt, leases and survivorship – cool way to say it
“there is no right to devise one’s interest in a joint tenancy”
concurrent ownership – one T pays for unnecessary repairs – result
other Ts dnh pay BUT later at sale of property, the T who paid for the extra work will get value of profits from extra work
Olivas v. Olivas
F: divorcing husband suing D divorcing wife after she stayed in house N: there can be a costructive ouster or abandonment in divorce, uclear here so defers to lower court finding (abandonment)
transfer of interests: foreclsoure: traditional rule
depends on which came first: 1) lease first – mortgager took subject to lease so lease survives foreclosure 2) mortgage first – opposite
divorce is ouster?
some courts: yes, constructive. others: no, needs to be affirmative
what to do with CP at divorce? (3)
CP: splits evenly between spouses SP: retained by owner-spouse equitable distribution rules overlay CP! (eg no assets, one is neurosurgeon and one is homemaker)
F: divorcing husband suing D divorcing wife after she stayed in house N: there can be a costructive ouster or abandonment in divorce, uclear here so defers to lower court finding (abandonment)
Olivas v. Olivas
community property and death
wife can will all her SP and half of CP
separate property states–on death
often forced to give widow/er a certain amount of your estate, but ok will your separate propety during lifetime
affirmative outster
eg changing locks
tenancy by the entirety–survivorship etc
survivorship: yes unilateral termination: no, unless divorce or death unilateral encumbrance: NO (creditors can’t reach it for debts by one spouse)
prenup enforceable?
usu
divorce: what if you’ve livedin different states?
apply laws of each state for periods lived there
