III. Shared Property - Concurrent Possession, Marital Interests, Leases

Question 1

James v. Taylor (Concurrent)

Answer 1

If an instrument of conveyance does not show an intent to create a right of survivorship, the instrument cannot create a joint tenancy.

Question 2

Tenhet v. Boswell (Concurrent)

Answer 2

A lease does not sever a joint tenancy, but expires upon the death of the lessor.

Question 3

Ark Land Co. v. Harper (Concurrent)

Answer 3

The economic value of property is not a decisive factor in determining whether to partition in kind or by sale.

Partition in kind vs. sale - in kind is physical division

Question 4

Esteves v. Esteves (Concurrent)

Answer 4

Where a cotenant has sole possession of the property and demands contribution for operating and maintenance expenses from the non-possessing cotenant, the tenant in possession must allow a corresponding credit for the value of his sole occupancy.

Question 5

Sawada v. Endo (Marital)

Answer 5

The interest of a husband or wife in a tenancy by the entirety is not subject to the claims of his or her individual creditors during the joint lives of the spouses.

Question 6

Guy v. Guy (Marital)

Answer 6

A professional degree obtained by a spouse during a marriage is not marital property.

Question 7

Gazvoda v. Wright (Marital)

Answer 7

In the context of an unmarried, cohabitating couple, one party is entitled to relief from the other upon a showing of an express contract or a viable equitable theory such as an implied contract or unjust enrichment.

Question 8

Obergefell v. Hodges (Marital)

Answer 8

Under the Due Process and Equal Protection Clauses of the Fourteenth Amendment, states must issue marriage licenses and recognize lawful out-of-state marriages for same-sex couples.

Question 9

Joint Tenancy (TTIP)

Answer 9

Only created through 4 unities:

Time - All joint tenants must acquire their interests at the same time. If A and B obtain their interests on different days, the unity of time is absent.
Title - They must acquire title by the same instrument. If A and B receive their interests by different deeds, the unity of title is missing.
Interest - They must have the same shares in the estate, equal in size and duration. If A receives an undivided 2/3 interest and B an undivided 1/3 interest, there is no unity of interest.
Possession - They must have an equal right to possess, use, and enjoy the whole property.

• Only alienable, not devisable or descendible. If a joint tenant transfers their interest, it breaks up the 4 unities, and tenants in common are created among the new interest holders. (If multiple old interest owners, they still are joint tenants).

Question 10

Tenancy by the entirety

Answer 10

• The estate arises only when the four unities of time, title, interest, and possession are present—plus the fifth unity of a valid marriage. Can only be ended by death, divorce, or agreement of the parties.

Question 11

Tenancy in common

Answer 11

• Each tenant in common has an undivided, fractional interest in property. Each may transfer his interest to another person: it is freely alienable, devisable, and descendible.
• Each tenant has right to use the entire property

Question 12

Litigation: cotenant rights and duties

Answer 12

I. Contribution action:
* cotenant (in-possession) seeks reimbursement from other cotenants for certain expenses she has paid for the operation or maintenance of the property.
* cotenant’s necessary expenditures (mortgage, taxes, etc that can generate lien) can be recovered as contribution share from other cotenants;
* but elective expenditures, repairs, and improvements not recoverable (these are taken into account during a sale)
* offset possible for non-occupying owner based on fair market rental value (Esteves v. Esteves)

II. Accounting action:
* cotenant seeks to obtain her share of the rents, profits or other benefits that the property has generated (e.g. rental, exploitation of subsurface minerals, etc.)

III. Partition action (in kind or by sale):
* cotenant seeks to both partition the property and have the court settle the financial affairs of the cotenants.
* usually pro rata share of reasonable repair and improvement expenditures

Question 13

Community Property System

Answer 13

i. During Marriage
* Separate Property
* Includes property acquired before marriage and property acquired separately during marriage by gift, devise, or inheritance (but not wages).
* Community Property
* All property, other than separate property, that either spouse acquires during the marriage.
* Includes each spouse’s earnings, as well as property purchased with those earnings. Separate property can be transmuted into community property if the spouses so intend, or if it is commingled.
* Couple owns community property equally and jointly.

ii. Dissolution of Marriage
* Some community property states → Equal shares
a. Retain separate property & half of community property
* Other community property states → Equitable distribution

iii. Death
* Spouses are generally free to dispose of all of their separate property, and one-half of their community property by will. If a spouse dies without a will in a community property state, his or her share of the community property generally passes to the surviving spouse, but separate property is distributed equally between children/spouse.

Question 14

Separate Property System (Common Law)

Answer 14

i. Owned and controlled by one spouse alone.

ii. Gives each individual spouse considerable latitude to own and control separate property during and after the marriage.

iii. During Marriage

• 1. Separate Property
• a. Includes property acquired before marriage(e.g. real estate, automobiles, bank accounts, or stock).
• b. Generally includes property acquired separately during the marriage (e.g. gifts, devises, inheritance, ​and wages)​ .
• 2. Marital Property
• a. Can be transformed (“transmuted”) if the spouses so intend.

iv. Dissolution of Marriage — Equitable Distribution
1. Relevant factors include:
a. the contribution to, and dissipation of, the marital assets by each spouse;
b. the economic circumstances, sources of income, and employment prospects of each spouse after divorce;
c. and child custody and support.

v. Death
1. The surviving spouse is protected by:
a. Laws of Intestate Succession
State intestate succession statutes allocate a substantial share of the decedent’s property at the time of death (the “estate”) to the surviving spouse, and also provide for other survivors such as children (from present and former marriages) and surviving spouses.
b. Elective Share (or “forced share”) Provisions
i. If the decedent’s will is unfavorable, the surviving spouse can elect to take a statutorily prescribed share of the decedent’s estate.

Question 15

Modern forms of concurrent
ownership

Answer 15

Condominium
* Undivided interest as tenants in common in shared elements of community
* Fee simple absolute in interior of unit

The Cooperative
* Resident is stockholder in corporation, which owns entire premises
* Resident holds a long-term leasehold interest in an individual unit/apartment
* Single mortgage held by corporation

Time-share housing
* Deeded time-share arrangement where each cotenant owns interest in a specific unit to use at a specific time each year.

Question 16

Fair Housing Act of 1968

Answer 16

Prohibits dwelling discrimination on Race, Color, Religion, Sex, Familial status, National
origin, Handicap

Question 17

Civil Rights Act of 1866

Answer 17

Prohibits discrimination on race for all housing

Question 18

Constructive Eviction

Answer 18

Wrongful act or omission
* By the landlord
* That substantially interferes with the tenant’s beneficial use and enjoyment of the premises

Tenant gives notice, waits reasonable time, and can vacate if not cured

Question 19

Implied Warranty of Habitability

Answer 19

Change from common law “caveat emptor”
* Warranty that premises are in “habitable” condition for duration of tenancy
* No need to abandon premises in order to assert remedy
* Duty to pay rent is dependent on IWH

Standard
* The property must meet “bare living requirements” and be “fit for human occupation.”
* “Substantial compliance with building and housing code standards” may be enough. But a code violation is not
necessary to establish a breach if the defect impacts health or safety.”
* “Minor deficiencies” do not breach the warranty.

Procedure
* Give notice to the landlord.
* Wait a reasonable time for the landlord to fix the problem.
* Can withhold rent or sue for damages

Question 20

Duty to Mitigate

Answer 20

• “The duty to mitigate consists of making reasonable efforts to re-let the apartment. [Landlord] must treat the apartment as if it was one of his vacant stock.”
• Burden on landlord to show reasonable efforts
  – Factors include “whether the landlord, either personally or through an agency, offered or showed the apartment to any prospective tenants, or advertised it in local newspapers”
  – Rebuttal possible by showing that “he proffered suitable tenants who were rejected.”