Co Ownership and Marital Interests

Question 1

Harms v. Sprague

Mortgage Does Not Sever Joint Tenancy

Answer 1

One Joint Tenant (Harms) granted a mortgage on the property.
ISSUE:
Does the Mortgage survive Harms’ Death as a lien on the property?
NO, Mortgage did not sever title in JT. Harms property interest disappears, Lien disappears, Whole Interest is retained by Brother.

Question 2

Tenancy by the Entirety

Answer 2

Created by Husband and Wife Only.

• Property held as one person. Property Seised of the Whole (The Entirety) not my the Share (Moiety).
• Neither can defeat another’s right of Survivorship.
• Neither Acting Alone has the Right to Partition.
• Divorce Terminates Tenancy by the Entirety

Question 3

Joint Tenancy 
(main characteristic = Right of Survivorship - equivalent of a Will)

Answer 3

• Decedent’s Interest vanishes at Death, survivor’s ownership of the WHOLE continues.
• JT cannot pass her interest by WILL - Cannot convey at death.
• Can Be severed only during life.
• Converts to Tenancy in Common

Question 4

Joint Tenancy: Four Unities (Old Rule)

Answer 4

Unity of Time 
Unity of Title
Unity of Interest 
Unity of Possession 
NEW RULE = INTENT to Create a Joint Tenancy

Question 5

Tenancy in Common

Ambiguous Language favors Tenancy in Common

Answer 5

1) Separate, but undivided Interest in the Property
2) Interest of Each = Inheritable, divisable, alienable.
3) Tenant Cannot sever his own interest, but may alienate his interest.

Question 6

A and B hold property in Joint Tenancy (p. 359)
A gives a Term of Years to C 
A Dies after 5 Years
A devises all property to D 
What Result?

Answer 6

B = Sole Owner (after A’s Death, interest cannot pass by will, but goes to B).

• Term of years is void as to C.
• D cannot inherit a property interest by will if in JT.

Question 7

Delfino v. Vealencis

Partition by Sale - Requirements

Answer 7

1) Physical Attributes of land make partition in Kind impracticable or inequitable
2) The interests of the owners would be better promoted by partition by sale.

(Partition in Kind = Presumed the better option)
- Burden on P’s to prove sale would better promote owners interests.

Question 8

Example p. 371
A+B both want Father’s Rocking Chair (cannot agree on taker).
What Relief?

Answer 8

Chair goes to A for six months, then to B for Six months (until Death).

Question 9

Severance or Survival of Joint Tenancy (where one JT grants less than fee estate to another):
e.g. A+B = Joint Tenants
- A grants X a life estate or Lease.
Four Possible Outcomes?

Answer 9

1) Severance of JT = X+B are joint Tenants until the interest ends, then back to A+B as Tenants in Common.
2) No Severance =
B survives A, B takes WHOLE Interst.
A Survives B, A takes interest subject to the interest of X.
3) No Severance =
B survives, B subject to Interest (TiC w/ X for period),
A Survives, A subject to Interest.
4) Partial Or Temporary Severance =
B Survives = X+ B are tenants in common
A survives = A subject to interest.

Question 10

Problem p.359
H+W = Joint Tenants
- Sign a divorce agreement to sell and Divide Equally.
- W Dies before Sale

Answer 10

Common Law Rule:

• Divorce does not sever JT
• Only Sale/Transfer Severs JT.

State Statute:
- Divorce Converts JT into Tenancy in Common.

Question 11

P. 346 Problem 2

T to A+B as Joint Tenants for their Joint Lives, remainder to the Survivor.

Answer 11

Life estate to Both, Remainder to the survivor.

Question 12

A+B = Joint Tenants

A+B Sign Written Agreement giving B rentals from and possession of the land for life.

Answer 12

• Does not Destroy JT (No destruction of the Unity of Possession)
• B owns property on A’s Death.

Question 13

Swartzbaugh V. Samson

Can one Joint Tenant maintain an action against a Lessee who signed a lease with another Joint Tenant?

Answer 13

Rule: One JT can make a Lease of the JT Property, but lease only binds his or her share.
- Lessee must only pay rent and allow co tenants access.
- Neither JT, nor TiC can do any act to prejudice the CoTenants in their Estate.
Remedy: Partition
- Ouster: Try to enter, if tenants resist, recover 1/half rents
Accounting of the Rents - FMV or rents received.

Question 14

Spiller v. Mackereth

Is Co-Tenent in Possession liable for Rent to other Co-Tenant?

Answer 14

No.
Rule: If there is no agreement in place, and No Ouster (Co-tenant denies access to other Co-Tenant) = NO LIABILITY FOR RENT.
- No Intent to Exclude (locks)
- No Denial of right to enter property.

Question 15

Ouster (Elements):

Answer 15

1) Claim of Absolute Ownership, and
2) Denial of Co-Tenancy Relationship
(Refusal of Other Co-Tenants right to Use and Enjoyment)
- Beginning of Running of SOL for Adverse possession
- Liability of an Occupying Tenant to Other Co-Tenants.

Question 16

Accounting for Benefits: Necessary Repairs

Answer 16

Most Jurisdictions: Recognize no Affirmative Right to contribution absent and Agreement
RULE:
By weight of authority and reason - amounts that should be spent on repairs = Too Uncertain for Law to Settle.

Question 17

Sawada v. Endo

Property Held in Tenancy by the Entirety

Answer 17

Holding: Under Married Women’s Act - Interest of the Husband and Wife in an Estate by the Entireties is NOT SUBJECT TO CLAIMS OF CREDITORS of individual spouses.

T by E Characteristics:

1) Indivisable, except by joint action
- Cannot be divided by Levy
- Not subject to Individual Creditors.

Question 18

In Re Marriage of Graham

Marital Property

Answer 18

ISSUE: Is an MBA marital Property?
Property Definition:
- Anything with a right of ownership protected by law, that has exchangeable value, transferrable, assignable, alienable.
- Educational Degree is not transferrable, and has no exchange value.

Question 19

ELKUS v. ELKUS

Marital Property

Answer 19

Broadly defined marital property:
Property acquired during marriage regardless of the form in which it is held.
- Intended to give effect to the “economic partnership” concept of a marital relationship.
- statutory definition does not mandate property must be saleable, assignable, or transferrable
- Equitable distribution of marital property is required.

Question 20

Modern Elective Share

Answer 20

Surviving Spouse can renounce the will and elect to take a 1/2 share in decedent’s relevant property.
- Usually does not apply to jointly held property or life insurance proceeds.

Question 21

Inception of Property Rule (community property)

Answer 21

Character of the property determined at the time the contract for purchase was signed.
= Wife Signs = Her property
“Community” entitled to a return of community payments + interest

Question 22

Time of Vesting Rule (community property determinations)

Answer 22

Title does not pass till installments are made = so property is community property.

Question 23

Pro Rata Apportionment

Answer 23

Community Payments “buy in” a pro rata share of the title.

Question 24

Migrating Couple (Domicile)

Answer 24

Domicile of the spouses when the property is acquired determines the character of the property as community or according to the common law.

Question 25

US v. 1500 Lincoln

Civil Forfeiture Case

Answer 25

What Gets forfeited if property is held by T by E?

Guilty Party’s Right of Survivorship

Question 26

US. V. Lee (Civil Forfeiture)

Answer 26

Without a Compelling need to seize unlawfully used property, innocent party needs more protection, esp. where property was not used for illegal purposes.

Question 27

Community Property System

Answer 27

• Exists only between husband and wife
• Presumption of Equal contribution and ownership
• Neither Spouse can convey 1/2 share alone (except to the other)
• At death - Each may convey 1/2 by will (No Survivorship)
• Stepped up Tax Basis
• Divorce = Division in equal shares or equitably (equitable division) - based on economic earning capacity of spouses.

Question 28

Separate Property Under Community Prop

Answer 28

Property acquired before Marriage, or by:

• Gift
• Devise
• Descent

Question 29

Riddle v. Harmon

Allowed Unilateral Severance of Joint Tenancy by Direct Transfer

Answer 29

• Either Joint Tenant has the right to convey separate Estate by gift or otherwise w/ out the consent of the other Joint Tenant.
• Straw Man is not required to sever JT.