V. CO-OWNERSHIP AND MARITAL INTERESTS (343-48, 361-410)

Question 1

3 forms of concurrent interest

Answer 1

1. tenancy in common - 2+ w/o right of survivorship, when 1 dies their interest passes to heirs/devisees
2. joint tenancy - 2+ w/ right of survivorship, CL requires 4 unities (time, title, interest, possession)
3. tenancy by entirety - exists only between hubby and wife, right of survivorship that can’t be severed w/o consent of both spouses

Question 2

tenancy in common

Answer 2

each owner has separate undivided interest in the whole, no right of survivorship

Question 3

main diff btwn tenancy in common and joint tenancy?

Answer 3

joint tenancy has right of survivorship, tenant in common does not

Question 4

are equal shares necessary for tenant in common? can they include diff types of estates?

Answer 4

no, it is presumed they are equal but evidence that unequal shares were intended can overcome this; diff types of estates are also okay

Question 5

alienability of a tenancy in common

Answer 5

tenant in common can sell, give, devise, or otherwise dispose of her undivided share in the same manner as if she were the sole owner of the property

Question 6

partition

Answer 6

any tenant in a tenancy in common or joint tenancy can bring a suit in partition; it’s an equitable proceeding where ct physically divides or sells the common property

Question 7

when a conveyance is made to 2+ who aren’t hubby & wife, what type of concurrent ownership are they presumed to have?

Answer 7

tenancy in common (can be overcome by evidence that joint tenancy was intended)

Question 8

joint tenancy

Answer 8

undivided share of property with right of survivorship (so tenant who lives the longest takes the property by herself); 4 unities requirement of time, title, interest, possession

Question 9

what type of concurrent ownership do heirs take when they inherit property by intestate succession?

Answer 9

tenants in common

Question 10

4 unities requirement of join tenancy

Answer 10

1. unity of time - interest must vest at the same time
2. unity of title - must acquire by same deed/will or by a joint adverse possession
3. unity of interest - equal in an estate of one duration (identical interests), share of each joint tenant must be equal
4. unity of possession - each joint tenant has right to possession of the whole

Question 11

per my et per tout

Answer 11

by the share or moiety and by the whole (joint tenants are regarded as composing one entity)

Question 12

In most states, how would conveyance by Hubby “to H and W as joint tenants” be viewed? In CL?

Answer 12

Most states - joint tenants bc H is conveying to a different entity (H and W) of which H is only a part

In CL - tenants in common; not joint tenancy bc it’s just a conveyance of a one-half interest by H to W so unities of time and title are lacking. Alternatively, H can use a strawperson: H conveys to straw person and then strawperson conveys “to H and W as joint tenants”

Question 13

main difference between tenancy in entirety and joint tenancy?

Answer 13

in tenancy in entirety neither tenant acting alone can do anything to destroy the right of survivorship

Question 14

tenancy in entirety

Answer 14

only btwn hubby and wife, 4 unities, right of survivorship, severance by one tenant is impossible

Question 15

per tout et non per my

Answer 15

in tenancy in entirety hubby and wife take as one person

Question 16

Does a co-tenant in possession have to pay rent?

Answer 16

Not unless co-tenant in possession ousted other(s), agreed to pay, or co-tenant in possession stands in a fiduciary relationship to other(s)

Question 17

ouster

Answer 17

co-tenant that deprives another co-tenant of right of possession

Question 18

partition in kind

Answer 18

court may order physical partition of property into separate tracts if that is feasible; once the land is physically partitioned, each part owns her tract alone in fee simple

Question 19

owelty

Answer 19

used in partition in kind when separate tracts are not of equal value, ct will require one tenant to pay $ to other tenant to equalize values

Question 20

partition by sale

Answer 20

if physical partition is not feasible or in best interests of the parties, court will order the property sold and sale proceeds divided equally among co-tenants; however, division of proceeds may be adjusted on account of taxes, interest, repairs, and improvements.

Question 21

Statute of Anne

Answer 21

Anne wants her proportionate share.

cotenant in possession need not account (pay rent) to covenant out of possession; covenant out of possession can only demand occupation (jointly); however, covenant in possession is accountable to any covenants of any rents received (and if he receives rent, he has given up right to occupy that land)

Question 22

In a jxn following majority rule, if one co-tenant ousts another co-tenant, what must she pay the ousted co-tenant?

Answer 22

she must pay the ousted co-tenant his share of the reasonable rental value of the property

Question 23

How to establish adverse possession in cotenancy?

Answer 23

To establish adverse possession, co-tenant must give other co-tenants clear and unequivocal notice of repudiation of the common title. Very hard to trigger adverse possession in cotenancy because one cotenant always acts permissibly (doesn’t satisfy hostility requirement); also cannot have adverse possession where cotenant is kin, because the courts often treat the cotenant as a fiduciary.

Question 24

partition in kind

Answer 24

court may order physical partition of property into separate tracts if that is feasible; once the land is physically partitioned, each part owns her tract alone in fee simple

Question 25

Should cts consider sentimental value given to one area of the property when granting partition in kind?

Answer 25

Courts must behave neutrally and equally; should NOT consider the sentimental value given to one area of the property (although you see courts doing this all the time, as in Delfino v. Vealencis)

Question 26

No Fault Divorce laws

Answer 26

Before 1970, divorce was only granted if one party committed a marital “fault” such as extreme cruelty or adultery. No fault divorce laws allowed divorce absent marital misconduct.

Question 27

Did cts prefer partition in kind or partition by sale? Modern preference?

Answer 27

common law’s preference for partition in kind stems from simplicity of dividing farmland to reflect individuals’ interest; as soon as interests are in more urban areas, equitable division becomes difficult, and partition by sale makes more sense

Question 28

accounting

Answer 28

equitable proceeding, an action for accounting is limited to assets the person is accounting for (i.e. rents recieved)

Question 29

right to contribution

Answer 29

an action for contribution is not limited, cotenant can go after any of the cotenants’ assets to satisfy it

Question 30

Delfino v. Vealencis

Answer 30

DelVe into trash (garbage removal business case)

Court held partition in kind was feasible and in the interests of all parties, since there would be great hardship posed on defendant in forcing her to sell her land and business

Court holds partition in sale should only be granted in extraordinary circumstances because it forces a person to sell his home/land; it should only be granted where physical attributes of land make partition impracticable or inequitable, or interests of owners would better be promoted by partition by sale.

Question 31

Swartzbaugh v. Sampson

Answer 31

Sam loves Pacquiao

plaintiff and defendant Swartzbaugh are husband and wife who hold land as joint tenants; defendant leased land to Sampson to build boxing pavilion, but plaintiff was opposed to this action; question is whether defendant can lease land held in joint tenancy without plaintiff’s consent

One cotenant may give another the right to occupy and use the property of co-tenancy as fully as that cotenant may have used or occupied it; defendant was fully capable of leasing his rights to the land to Sampson; this does not prejudicially affect plaintiff’s rights Lease gives defendant the same right to the property as defendant Swartzbaugh had; lease does not sever joint tenancy (joint tenancy severed only if cotenant conveys whole interest to a third party)

Question 32

Marital Property

Answer 32

Defined in some states to include all property acquired during marriage by any means; others only include property acquired from earnings of either spouse during marriage.

Question 33

Is a professional degree marital property?

Answer 33

not marital property (In re Marriage of Graham); marital property (O’Brien v. O’Brien)

Question 34

Elkus v. Elkus

Answer 34

elks love opera

Holding: defendant is entitled to amount of increased value stemming from his contribution to plaintiff’s career; this was product of marital partnership, and therefore marital property subject to equitable division

Question 35

In re Marriage of Graham

Answer 35

MBA’s eat Graham crackers

Holding: degree is not property; it does not have exchange value or any transferable value on open market; it is personal to the holder, terminates on death of holder and is not inheritable; it cannot be assigned, sold, transferred, conveyed, or pledged; it may not be acquired by mere expenditure of money

Question 36

Dower

Answer 36

at CL, wife has dower in all freehold land of which husband is seised during marriage and which is inheritable by issue born of the marriage

Dower is a life estate in one-third of each parcel of a dead husband’s freehold land that goes to Wife upon H’s death. The rest goes to heirs and assignees.

Question 37

Curtesy

Answer 37

husband had curtsey only if issue were born of the marriage; he received life estate in all of his wife’s land (not merely 1/3 of them)

Question 38

Elective share

Answer 38

surviving spouse gets elective share in decedent’s property owned at death; share is usually one-half or one-third; it is in both real and personal property; this has replaced common law dower and curtesy in most states (except Georgia)

option: Surviving spouse can renounce the will and elect to take a statutory share.

Question 39

Just as co-tenants generally do not have a duty to repair, co-tenants do not have a duty to _____

Answer 39

improve

Question 40

Co-tenant that improves should get the _______ by the improvements.

Answer 40

value added

Thus, if the improvements add no value, the improver is not reimbursed (improver bears the risk)