Co-Ownership/Marital Interests Flashcards
Start of Post-Midterm
What are the types of Co-Ownership
Tenancy in common, tenancy by the entireties, joint tenancy
What is a Joint tenancy? give example?
Tenancy amongst multiple parties, w/ a right of survivorship that may be implied. Land does not go to your estate when you die, it goes to the other party and therefore nothing goes to probate.
You can sell your joint tenancy to another party [alienate property separately], once you do it becomes a tenancy in common, destroying right of survivorship.
Example: “To A and B as joint tenants w/ a right of survivorship.”
What is a Tenancy in Common? Give example?
Similar to Joint tenancy with horizontal ownership. Each party owns their own separate property. You can do with that interest whatever you want.
“To A, B, and C as tenants in common.”
What is tenancy by the entireties?
Necessarily between husband and wife. Has to be between marital partners. Automatic right of survivorship. No right to alienate the property separately. Need consent of both partners to transfer land.
NOT ALLOWED IN CA, but exists in a lot of states.
What is necessary to create a joint tenancy?
4 unities.
Must vest at the same time,
acquire by the same instrument
all must have equal undividied shares
right to possession of the whole
[Can’t do anything exotic]
What is the right to partition?
If you can’t stand your co-tenant anymore,
you go to court and demand the court partition the interest.
Similar to no-fault divorce.
What is the English System for Marital Interests?
Favors the man.
Wife’s property controlled by husband during the marriage. He can sell or pledge it. Normally assumed it belonged to the party who earned it/name of the account.
Salaries: Husband salary belongs to H and Wife salary belongs to wife. Doesn’t matter tho, because property is managed by husband.
Money in Account or Stocks: In H name, H property. In W name W property.
What are the Married Women’s Property Acts?
Created in 19th century. Wife manage wife property.
Husband manage husband property. Doesn’t change basic inequality.
More property earned and put in the name of husband property therefore belonging to husband and managed by husband.
PT 2: What other rules are important in tenancy by the entireties
Survivorship right: Once spouse dies property automatically goes to the other spouse.
To alienate the property, joint signatures of both spouses are required.
Can Tenancy by the entireties be immune to separate creditors?
IRS: If the husband rolls up a tax debt. IRS can levy on tenancy by the entireties property. Half interest with the wife. Controversial.
Hawaii Case, Husband ran over someone who is a tort victim: Court said you can’t do it. Separate debt for the husband. Can’t alienate property separately but not valid to satisfy separate torts to separate creditors. The creditor could not access the property. Not CA rule.
Forfeiture Laws: Drug business, use the boat which is TbE to sell cocaine. Case law is not clear. DEA could get your survivorship right.
CA Rule: If you have a debt rolled up by a single party that can be satisfied out of that person’s separate property or the entire community property.
How does Property in English System Upon Divorce get treated?
Each spouse keeps their own property.
Tends to favor husband cuz property is usually in husband’s name.
Duty of support: Husband owes the wife a duty of support both during and after the marriage.
Modern approach: Evolved in the direction of Community Property System. Create an equitable distribution of assets. Alimony has diminished in importance. Husband doesn’t owe permanent support to the wife. May go against the woman in modern era.
How do we define Equitable distribution? Similar to CP
A degree is not property [In re Marriage of Graham]. If one spouse provides for the education of the other spouse that should be taken into account in support payments. Maybe giving a bigger share to one spouse.
Equitable distribution = equal distribution.
What happens upon the death of a spouse in the English System? [MIGHT NEED TO ADD]
Traditional Doctrine of Dower:
Wife gets 1/3 of interest for life in Husbands Real property.
Land has become less significant in general, now you have forced share statutes:
If H wants to leave all his property to child from previous marriage, W can reject the will and demand a forced share of the H’s estate.
You can get specific property they gave to you but the value of that counts against your half interest or third interest.
How does the Community Property System define Separate and Community Property?
Separate Property: Things brought into the marriage, as well as gifts and inheritances given during the marriage.
Any income from the separate property assets.
Community Property: Any earnings during the marriage, income from community property assets.
What are the rights of creditors in the Community Property system?
Rights of Creditors: [Run over pedestrian and incur a tort debt case] Yes, community property is available to satisfy the debt of any spouse. Do not follow Hawaii case rule here.
Separate Creditors: Can reach separate property of the wrongdoer. The other spouse’s separate property would not be available.
