Co-Ownership

Question 1

What are concurrent estates?

Answer 1

Multiple parties owning the same property at the same point in time.

Question 2

What are the two main types of concurrent estates?

Answer 2

Joint Tenancy and Tenancy in Common

Question 3

What are the 4 unities in a Joint Tenancy? Describe them.

Answer 3

Time: parties get property at the same time.
Title: get property through the same instrument of transfer
Interest: equal fractional shared (quality/quantity)
Possession: shared possession.

Question 4

What is the right of survivorship in a Joint Tenancy?

Answer 4

Right of survivorship: if one of the joint tenants die, their property automatically goes to the other joint tenant[s].

Question 5

What is the 1 unity in a Tenancy in Common? Describe it.

Answer 5

Possession: both parties have possession of the property

Note: not necessarily an equal share (see e.g., In re Estate of Michael)

Question 6

In re Estate of Michael

Answer 6

finding that the property deed created a tenancy in common, not a joint tenancy, when Bertha attempted to include additional beneficiaries in her will because under PA law, a deed is presumed to create a tenancy in common unless explicitly stated otherwise in clear and unambiguous terms.

Question 7

Is there a right of survivorship for a Tenancy in Common?

Answer 7

No. Interests of one tenant can be passed along to someone else, not necessarily the other tenant, but there is no automatic transfer at death.

Question 8

What trend have we seen the law favoring in modern property law: Joint Tenancy or Tenancy in Common? Why?

Answer 8

Tenancy in Common. It is easier to buy and sell property with a tenancy in common.

Because property is folded into the market economy it is easier to move property if it is not encumbered by joint tenancy survivorships.

Question 9

If you’re working in a state that allows joint tenancies, what does a lawyer need to do to ensure that the court will find a joint tenancy to exist, if challenged? Why?

what case explains this rule?

Answer 9

Document must have clear, explicit, and unambiguous language indicating that the property owners want a joint tenancy.

Why: Because if there is any doubt as to what tenancy the court is dealing with or deems the language to be ambiguous, it will resolve doubt by understanding it to be a tenancy in common.

In re Estate of Michael

Question 10

Life Estate:

Answer 10

party conveys property to someone else but the party preserves the right to stay in property for duration of their life

Question 11

Dead Mans Statute:

Answer 11

renders inadmissible oral promises and declarations of a dead person if it cuts against their interest.

Question 12

Severance:

Answer 12

when unities in a joint tenancy are disrupted, the joint tenancy is then converted into a tenancy in common. (see e.g., Giles v. Sheridan)

Question 13

Can a party unilaterally take action that severs a joint tenancy?

Answer 13

Yes. A party can unilaterally take action that converts joint tenancy into a tenancy in common.

i.e. Minnie Giles in Giles case when she transferred 1/20th of her share in a joint tenancy to her nephew.

Question 14

Giles v. Sheridan

Question 15

How is condominium law relevant to our discussion of property? What is important for us?

Answer 15

Condos are a variety of concurrent estates. In a condo, each unit is owned individually in fee simple absolute (highest form of ownership). Shared spaces/structure is owned tenancy in common.

Question 16

O’Buck v. Cottonwood Village Condominium Association, Inc.?

Answer 16

finding that shared spaces and structures are owned as a tenancy in common. However, each resident owns their individual unit, they do not own the shared spaces. So, the Condo Association can make rules and regulations pertaining to those places (like prohibiting TV antennas on the roof).

Question 17

How is a Tenancy by the Entirety different than a Joint Tenancy? Is this a common type of concurrent estate?

Answer 17

Tenancy by the entirety includes a 5th unity which is marriage. Because this new unity is added, the Tenancy by the Entirety can be severed by divorce as well.

Tenancy by the entirety is not popular, it has been abolished in about 30 states including WI.

Question 18

What is a community property state? Is this the standard in the US, if not what is?

Answer 18

Each spouse has a ½ interest share of all marital property

Note: in community property states ½ share of all marital property includes debts (negative property) and assets.

Not the standard, only 9 states are community property states (including WI), the other 41 states are separate property states.

Question 19

What type of spouse would be most protected by community property law?

Answer 19

Stay at home parents who don’t have outside of home income.

Question 20

In re Marriage of Roberts holding?
Is this the majority rule?

Answer 20

At the time of divorce, a law degree cannot be treated as property because a degree is personal and hard to value.

This is the majority rule, but in NY, you can add a law degree in marital estate because an accountant could calculate the value of a law degree (O’Brien v. O’Brien (N.Y. 1985)).

Question 21

Can the goodwill of a law firm be included as property at the time of the divorce? Which case discussed this?

Answer 21

No, the goodwill of a law firm cannot be separated from the lawyer and cannot be sold. Whatever goodwill the law firm has is tied to the lawyer and cannot be divided up and given to a spouse.

This case was Prahinski v. Prahinski.

Question 22

What is future interest? When does someone hold future interest?

Answer 22

Future interest just like when someone owns property at one point in time, by design someone else will own the property at a different point in time

Future interest exists in the present, only possession is in the future.

Question 23

What is a defeasible estate and how does it relate to future interest?

Answer 23

A defeasible estate is created when a property owner transfers land based on certain conditions (e.g., death, marriage, etc.).

Question 24

What are the two standard patterns to set up future interest? Write out a formula style for each.

Answer 24

Reversion: A to B for life, then back to A.
- A is the reversioner

Remainder: A to B for life, then to C
- C is the remainderman

Note: “for life” in these patterns signals a life estate

Question 25

What does “condition subsequent” mean? Write out an example of the formula style.

Answer 25

Condition subsequent points to a condition that if met will affect the possession of future interest where any obligation to the other party is terminated.

A to B, but if B marries C, then to D

Question 26

Define contingent and vested remainders. Which one does the law prefer in the present?

Answer 26

Contingent remainder: when holder is unknown or unascertained or if there is some condition subsequent that must occur before remainder holder is entitled to take possession of interest.

Vested remainder: a remainder that does not require something to occur before it exists, but future interest is still locked in

The law prefers vested remainders. In Zucker, the court said that unless there is clear language making the future interest contingent, then it is assumed to be vested.

Question 27

What was a major problem with future interest? How did the common law deal with it? What do you need to know about it for this class?

Answer 27

Major problem: “dead hand control” where the person who issued the estate, who has died, is still in control of how the estate is passed down.

Common law came up with rules to control dead hand issues, most famously the Rule Against Perpetuities.

States have however moved away from RAP and each state instead has a statute that identifies how long the string of control can be

For this class do not need to know how to use RAP, just know it existed and that now states have their own statutes to address this issue.

Question 28

What is Waste?

Answer 28

Waste: causing a loss to the property or diminishing the value in the property by the person in possession of the land.

Question 29

What is the difference between voluntary and permissive waste? Give an example of each.

Answer 29

Voluntary: intentionally does something to the property that reduces its value or depletes its resources. ie, extracting minerals in estate, altering the structure around estate.

eg, friends nephew who took down a stand of dogwood trees that had been placed to shield the property from nearby state highway.

Permissive: unintentional failure to maintain property/when someone fails to do an act to protect the value of the home. ie: not making maintenance repairs and house falls apart

eg, possessor fails to put up storm windows in anticipation of nasty winter storm.

Question 30

What is “ameliorative waste?” What cases did we discuss related to “ameliorative waste” and what did the courts hold?

Answer 30

Waste that a court thinks actually increased the value of the property

Melms v. Pabst Brewing (1899). (finding that destroying a building did not constitute waste when the actions of the life tenant significantly increased the property’s value because the radical and permanent change in surrounding conditions justified the alteration, despite no contractual obligations specifying the property’s use or condition).

Brokaw v. Fairchild (1929) (distinguishing this case from Melms in finding that a life tenant may not use his land in a manner that causes permanent injury to the inheritance, when doing so would result in waste and permanently alter the estate, because the life tenant’s actions must not exercise dominion or ownership that impairs the property’s intended condition for successive remaindermen as outlined in the will).

Note: after this case and subsequent appeals, the NY legislature passed a law that allowed changes to a property if it is a prudent decision and does not diminish the value of the property.

Question 31

How does the Brokaw case and subsequent events illustrate a contrast between future interests and the market economy?

Answer 31

In some ways, property law will recognize a person’s dreams and wishes for their property, but it also has to recognize that holders of future interest and eventual property owners may want to use the property to make a profit.

Question 32

What is the biggest takeaway Papke wanted the class to understand regarding the significance of the right to dispose in the modern day?

Answer 32

Papke believes that the right to dispose is one of, it not the most important stick in the bundle of stick as property has been folded into the market economy.