Individually subdividing private possession co-ownership

Question 1

Tenancy in Common

Answer 1

o Presumptive state of co-ownership
o Separate but undivided interests in the property; each owner is entitled to simultaneous use and possession of the whole parcel
 No survivorship rights; descendible, devisable, alienable
 Owners can voluntarily move for partition
 Can arise by deed, devise, or by severance

Question 2

Joint Tenancy

Answer 2

o Majority rule: Granted through explicit language, i.e. “To X, as joint tenants with right of survivorship”
o Like tenants in common, joint tenants have an undivided right to use and possess the whole property. 
If one joint tenant transfers interest, joint tenancy is severed
• By conveyance
o Sale of interest to third party
• By consent
o Sale of interest to cotenant
 Court will look for legit conveyance (consideration)
o By partition
o CANNOT be severed by will
 Tenhet

Question 3

Joint Tenancy - Four Unities (Common law and some jdxs)

Answer 3

• Time – interests must vest or be acquired at the same time
• Title – interests must be shared by instrument
• Interest – interests must be identical and equal in size and duration
• Possession – all joint tenants must have a right to possession, use, and enjoyment of the whole

Question 4

Do leases implicitly sever JTs

Answer 4

 Tenhet

o “A joint tenant may, during his lifetime, grant certain rights in the joint property without severing the tenancy.
o “But when such a joint tenant dies his interest dies with him, and any encumbrances placed on the property become unenforceable against the surviving joint tenant.”

Question 5

 A and B own Blackacre as joint tenants. A takes loan from C and puts up his joint interest in Blackacre as collateral. Five years later, A dies, devising all his property to D.
• Does the mortgage sever the joint tenancy?

Answer 5

o Most courts hold no (lien theory, TX) – does not end joint tenancy b/c unities are preserved
o Some courts hold yes (title theory) – mortgage is seen as conveyance of title, which severs unity
• C’s security interest does not survive A’s death in most jdxs

Question 6

Tenancy by the Entirety

Answer 6

o A unit that owns the whole, but not separate divided shares of the whole
o Exists only in common law, not community property
 Some TbE states assume conveyance to married couples presumptively tbE
 Others require explicit language in conveyance
o Requires language “to A and B as tenants by the entirety”
 Cannot be severed unilaterally, only through death or divorce
 No rights of partition
 Any separate conveyance by either spouse is void – cannot be separately alienated, Sawada
• Formalist – indivisible
• Functionalist – home protection, favors families and protects the family over creditors and unraveling the family home

Question 7

Partition in Kind

Answer 7

physical partition
 Presumptive option – preferred (Ark Land)
• Arkland – economic value of property is NOT exclusive test for determining whether partition in kind or partition by sale
o Interests of all tenants must be considered
o Commercial interest would always prevail in that case…
 More appealing if they actually live on the land (sentimentality)

Question 8

Partition by Sale

Answer 8

– forced judicial sale and proceeds are split according to the percentage owned (Ark Land just would’ve bought when went on sale)
 Doesn’t account for sentimental value, someone will inevitably be shortchanged
 Requirements –
• 1. Impracticability of partition in kind, and
• 2. Fairness/interest balancing
o Consider Pareto v. Kaldor-Hicks variations
 Pareto says only if no one worse off can you move forward
 Kaldor-Hicks – those that are made better off can offset those that are made worse off

Question 9

Contribution during Co-Tenancy

Answer 9

o Rents – During occupancy, no owners must pay the other owners for rent
 Pro rata share owned for rental to third parties
 Possible obligations by sole owner-occupiers after occupancy ends
o Profits – Sharing obligations during occupancy, based on actual receipts and not FMV
o Taxes or Mortgage Payments – Co-tenant who pays more than his share is entitled to equitable share from other co-tenants
 Minority rule – only co-tenants in possession must pay

Question 10

No contribution during co-tenancy

Answer 10

o Improvements – No right of repayment during occupancy
 Increased market value reflected at sale allocated to improver
 Partition may include allocation of improved portion
o Necessary Repairs – No right of repayment during occupancy
 Possible reimbursement via accounting action
 Upon sale, credit for repairs

Question 11

Ouster

Answer 11

• Actual Ouster – Physically preventing co-owners’ exercise of property rights (primarily use and exclusion), ie lock them out
• Constructive Ouster – Effectively preventing co-owners’ use of property by unreasonably interfering with their property rights (primarily use or exclusion)
o Emotional: usually divorce, requires mutual hostility, see Olivas (Husband argued to be pulled out as opposed to pushed out due to affair)
• Remedies
o Rent, necessary repairs upon sale/accounting

Question 12

Common law marital property (Majority)

Answer 12

o Both spouses separately own property
o H&W are regarded as separate entities
o They each own what they earn, inherit, or are given
o Unless they opt into some co-ownership device, e.g., joint tenancy

Question 13

Community property

Answer 13

o 9 states – LA, TX, NM, AZ, CA, NV, WA, ID, WI; AK and TN allows couples to opt in (also PR and several Indian tribes)
o H&W are regarded as a single indivisible entity (cf. tenancy by the entireties): the marital community
o The MC owns what each spouse earns during marriage, as well as any gifts to the community
o The spouses separately own pre-marital property as well as what they acquire via gift, descent, or devise during marriage

Question 14

Prenuptial Agreements

Answer 14

o Presumptively enforceable, unless
 Party did not sign voluntarily (duress), or
 Agreement was
• Unconscionable when made
• Party did not receive full and fair disclosure
• Party did not waive right to disclosure, and
• Party could not have reasonably learned relevant information

Question 15

Tenancy by the entireties conveyance

Answer 15

Majority view: cannot be conveyed unilaterally (Sawada)
Minority view: can be conveyed unilaterally

o Policy Considerations

 Formalistic – indivisibility of the TbE where the interests of a husband or wife in a TbE are not subject to the claims of his or her individual creditors during the joint lives of the spouses; but also negative effect on the availability of loans
 Functional – home protection, concerned about the home and family over creditors

Question 16

Typology of State Responses - Married Women’s Act

Answer 16

 Group I: No effect. H still has total rights of control over marital property. W has no such rights.
 Group II: Marital property can be attached to satisfy debts of either spouse, subject to RoS.
• Implication – could attach the judgment, but if the right of survivorship means that he has no interest then out of luck.
 Group III: Any separate conveyance by either spouse is void (including debt).
• Implication – cannot attach property to satisfy a judgment lien.
 Group IV: Right of survivorship is alienable by either spouse, but rights during marriage are not.
• Implication – Only get an attachment if the one being sued outlives the other spouse.
 Group V: MWPAs eliminate TbE.
• Implication – Can attach debts regardless of joint tenancy.

Question 17

Are educational degrees marital property?

Answer 17

o Most states: not property (formalist view)
 Guy: MI is officially formalist but doesn’t mean not entitled to reimbursement
o Some states: property (functionalist view)

Question 18

Death & Elective Share Statutes

Answer 18

o Elective share (or force shared) legislation exists in all but one common law property state but no community (except GA)
o Surviving spouse is entitled to take some percentage of the decedent spouse’s estate, rather than what the surviving spouse would get under a will
 Usually ½ or 1/3 (TX uses this approach w/r/t non-CP assets)

Question 19

Divorce

Answer 19

• Historically, divorce available only if you could convince a court marriage was flawed
– E.g., adultery, abuse
– Property then went to title owning spouse
• ~1970, no-fault divorce became the norm
– Initial rule for property: equitable distribution
– Modern trend: equal distribution presumption
• Courts consider two questions:
– What is in the marital estate?
– Who gets it?

Question 20

Types of Leasehold Estates

Answer 20

o Term of Years
 Span determined by any period with a fixed, certain end date
o The Periodic Tenancy
 Span determined by succeeding periods, e.g., month to month
o Tenancy at Will
 No fixed period. (if fixed period is not certain, tenancy at will)
• Fair notice requirement in TX
• L leases to T for “as many years as T desires.”
o Tenancy at will under TX law, see Effel
o Minority rule: leases can specify sole terminability, see Garner (NY case)
o Tenancy at Sufferance (Holdover)
 created when a person who rightfully took possession of land continues in possession after that right ends.
 Landlord has two remedies –
• L may either evict or impose holdover tenancy.
• State law limits length of term to prevent L abuse.
o TX: new lease term is presumed month to month, though L can raise rent.

Question 21

Variant state approaches to the holdover problem

Answer 21

• No states allow imposed term of more than one year.
• Most states: holdover creates month-to-month (periodic) tenancy, with some penalty (e.g., double rent).
• Some states: holdover imposes new one-year term.
• Some states: holdover imposes new term identical to previous one (capped by first rule).

 L must unambiguously intend to treat T as holdover.
• I.e., choice is between eviction and holdover tenancy

Question 22

Defining delivery of possession

Answer 22

o American rule: L must deliver only legal right to possession
o English rule: L must deliver both legal right to possession and actual premises (Keydata)

Question 23

Assignment v. Sublease

Answer 23

 Assignment – (more common in commercial settings):
• A new assignee takes over the initial tenant’s lease term;
• Assignee is in privity of estate with lessor, liable to lessor for damages/rent on a property theory;
• Initial tenant remains in only privity of contract and would be liable to lessor only on contract theory.
 Sublease – (more common in residential settings)
• Tenant has executed second agreement with sublessee for part of remaining lease term;
• Tenant remains in privity of contract AND estate with lessor, and tenant is liable to landlord for any damages or lost rent incurred by sublessee on both property and contract theories.
 This all assumes there is no novation voiding the K between lessor and initial tenant.
 Look to the intent of the parties, as the actual words “sublease” or “assignment” are not conclusive, Ernst
• Landlord can limit sublease/assignment through clear lease terms and implied commercial reasonability limits
o Sole Discretion Clause – L may refuse/limit sublease/assignment for any reason
o Reasonableness Clause – L may refuse sublease/assignment only on commercially reasonable basis
o Silent Consent Clause – L may refuse sublease/assignment, must be commercially reasonably but L sole discretion is also implied

Question 24

Tenants in Breach

Answer 24

o Tenant in Possession
 Summary Proceedings are a quick and efficient means by which to recover possession after termination of tenancy
o Surrender v. Abandonment
 Surrender – landlord and tenant agree to end the lease early
 Abandonment – tenant vacates without justification and stops paying rent; triggers mitigation doctrine
o Tenant who has Abandoned Possession
 Duty to Mitigate –If Landlord makes reasonable efforts to mitigate, can recover all rent tenant should have pain under the lease that is not paid by replacement tenant
• If landlord doesn’t make an effort, he forfeits the amount - Sommer v. Kridel
o “Reasonable efforts” – advertise and show unit, reasonable rent and terms; treat abandoned premises as part of vacant stock
• Tenant always owes landlord all losses that cannot be reasonably mitigated

Question 25

Covenant of Quiet Enjoyment & Constructive Eviction

Answer 25

 Implied landlord obligation to provide premises fit for the purposes they were intended; breach occurs when the landlord’s wrongful conduct substantially interferes with the tenant’s use and enjoyment of the premises, Kaminsky
• Wrongful conduct Defined by – Lease-based expectations, statutory duties, common law duties, failure to make necessary repairs, frustration of lease intent, failure to control third persons he has right/reasonable control over
• Substantial interference – Reasonable person would have to conclude that premises were no longer suitable for habitation (residential) or for normal business (commercial)
• “Permanent” can include regularly occurring but not constant interferences
• Tenant must give landlord NOTICE & OPPORTUNITY TO CURE
o But can’t wait too long… Paolucci (not the case when you are there for years and renew)

Question 26

Certain kinds of L failures to act also count if rooted in clear duty

Answer 26

• L failure to comply with explicit lease promises
• L failure to comply with statutory duty
• L failure to comply with common law duties
• L failure to make necessary repairs
• Frustration of lease intent: “any act or omission of L that renders premises substantially unsuitable for purpose for which they are leased”, Reste Realty.

Question 27

Conduct of third parties?

Answer 27

• Certainly if L violated explicit promise to control third parties
• Probably also if L had right and reasonable opportunity to control
• But not if circumstances outside L reasonable control

Question 28

Remedy

Answer 28

• Damages for breach, or

* Constructive eviction, where tenant may leave and terminate lease

Question 29

Implied Warranty of Habitability

Answer 29

 Objective test
 Notice is irrelevant and waiver is unavailable by statute
 General minimum standard of safety and health, can look to health codes (Wade v. Jobe)
• Bare living conditions, cannot be contracted out of
• Limits – trivial violations, tenant causation, landlord repair time

Question 30

Remedy, Unavailable defenses, and Defenses

Answer 30

 Remedy –
• Prospective (where tenant has identified breach)
o Withholding rent
o Repair, requiring landlord to pay for costs
o Negotiate diminished rent for remainder of term
o Leave and sue for relocation expenses and other costs
o Punitive damages – if especially egregious
• Retrospective (where tenant has legally established breach)
o Excess value of rent during period of breach,
o Associates causes caused by past breach
 Unavailable defenses
• Waiver; third-party causation
 Defenses
• T causation; code compliance?

Question 31

Limits on Landlord’s Ability to Lease

Answer 31

o Eviction
 Traditionally – Landlord can evict any time for any breach, caveat lessee
• Tension between landlord freedom and increasing tenants rights
 Retaliatory eviction require tenant to show –
• T protected conduct
• [That causes]
• L prohibited conduct,
 And gives rise to presumption of invalidity of the L action (usually for possession)

Question 32

Fair Housing Amendment

Answer 32

	Regulated conduct
•	Sale/lease; terms; negotiation; showing; advertisements
	Protected categories
•	Race, color, national origin, sex, religion, family status, disability
	Disability discrimination
•	Site modifications: retrospective (permissive modification) and prospective (required accessibility)
•	Policy and practice variances
	Policy 
•	Intrinsic unfairness in discriminating against potential lessees/buyers 
•	Decreases economic efficiency 
	Conduct and status 
•	Relevant conduct – 3604(a)-(d)
o	Selling or leasing dwellings 
o	Drafting terms and negotiation
o	Advertising and publications 
o	Provision of services or facilities 
•	Unprotected groups?
o	Sexual orientation, age, marital status, profession, socioeconomic class
	Disability discriminations – 3604(f)
•	Permitted modifications
o	Who bears the cost?
•	Policies & Practices 
o	Must allow certain modifications

Question 33

Exempt dwellings

Answer 33

• Small, owner-occupied dwellings
o Rooms or units in dwellings can be occupied by no more than four families living independently
 As long as the owner occupies one of the units as their residence. Sec. 3603(b)(1).
• Single family houses sold by owner (less than three owned)
o As long as owner does not own more than three such homes, and
o No more than one such sale every two years. Sec. 3603(b)(2).

Question 34

FHA Remedies

Answer 34

• Damages, injunctions, punitive damages, criminal penalties, and mediations

Question 35

Showing FHA violation

Answer 35

• Overall test for FHA
o Is it covered under FHA (is it a dwelling Roomates)
o If yes, is it exempt?
 If so, look for advertising discrimination only
 Conduct is not violation under FHA
o If no
 Conduct AND advertising are both protected under FHA
• Evidence of explicit discrimination is a per se violation and does not require three step process

Question 36

Three Step Process for FHA

Answer 36

(Tex. Dep’t Hous. & Comm. Aff. v. Inclusive Comms. Project)
o Step 1 – Plaintiff must make prima facie case
 Disparate Impact – Statistical evidence of systemic discrimination due to defendant’s conduct
 Disparate treatment – Rejection of qualified applicant within one of the protected classes
o Step 2 – Defendant may offer legitimate explanations
 Bad credit, better offer
 Lack of objective qualifications
o Step 3 – Plaintiff may rebut the explanation as pretext
• Intentional discrimination always meets this standard and does not require the three step process

Question 37

Civil Rights Act of 1866

Answer 37

All citizens of the US shall have the same right, in every State and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal property
 Broader than the FHA – Not limited to dwellings, doesn’t have exemptions
 Narrower than the FHA – only pertains to race, doesn’t account for clever drafting