V. Concurrent Interests Flashcards
What is a tenancy in common?
“To A to B”
tenancy in common:
-default position when = unclear
- can transfer interest by:
- deed
- will (no survivorship rights: can transfer at death)
- intestacy (no will) (no survivorship rights: can transfer at death)
What is a joint tenancy?
“To A and B as joint tenants with rights of survivorship”
(“to A and B jointly” is not enough)
Requires 4 unities: Possession, Interest, Title, time
how to terminate?
Break 1 of the 4 unities
-right of survivorship (is key here): it automatically goes to the other joint tenant (in comparison to probate: having a will, etc.)
What is a tenancy by entiretY?
- views husband and wife as a single unit controlled by the husband
- REALLY hard to terminate
- requirements? (all 4 from joint tenancy + marriage)
(1) time: acquire title at the same title
(2) title: acquire title by same deed/will
(3) interest: 50/50 interest for 2 tenants (more flexible now)
(4) possession: each has right to possession of the whole
(5) marriage - how to terminate?
- divorce
- death of one spouse
- agreement of both spouses
Riddle v. Harmon
A joint tenant may terminate a joint tenancy by conveying his or her interest in the property, with or without the knowledge of the other tenant(s), to another party
Strawman method is antiquated, CA needs to allow transfer and termination by self. Goes straight to owners intent and don’t want to litigate little issues
Modern trend: Look to intent of parties
In a Title Theory state, what interest is transferred in JT by mortgage?
legal title is transferred by the mortgage= YES JT severed
What interest in transferred by mortgage in a Lien theory state?
(MAJ) mortgage is just a security interest, title not transferred until delivery and therefore NO JT not severed
Harms v. Sprague
Does mortgage severe JT?
Court adopts Lien theory, no severance and mortgage does not survive death (minority opinion, most would say it does survive death)
Does leasing severe JT?
May lease entire property without ocnsent; courts are divided on how this works:
Permanent Severance Some states hold that a unilateral lease by one joint tenant permanently severs the lessor’s interest.
Temporary Severance Some states hold that a unilateral lease severs the lessor’s interest temporarily, for the duration of the lease. Thus, if the lease expires before the lessor dies, the joint tenancy is restored.
No Severance Some states hold that the lease does not cause a severance. In that case, if the lessor dies before the lease expires, both the lessor’s interest and the lease will disappear, and the normal rules of survivorship will govern. MAJORITY VIEW
Swartzbaugh v. Sampson
plaintiff could not recover against her husband who leased part of property non-exclusively for boxing pavillion
What are two remedies to severance?
Partition: ends the co-tenancy: distributes the property and provides a final accounting
Accounting & Contributions
What are the two types of partition?
In-Kind: physical division of property into separate pieces
Court prefers this because it is an extreme exercise of power to force to sell
Sale: sell and share funds
When In-Kind is too impractical (weird shaped land, too many owners)
When it is in the best interest of the parties (personhood theory- someone living on the land)
Delfino v. Vealencis
D wants to develop land, V lives on part and runs a trash co. D requests partition via sale, V requests partition in-kind. Remanded because sale was not appropriate need to determine interest of all parties
What is ouster?
First, the possessor must intend to exclude the other cotenants from possession. Second, the possessor must have provided clear and unequivocal notice of such intent. Co-tenant in possession does not need to pay rent unless ouster or agreement. If ouster, must pay fair rental value minus carrying charges. AP in CT relationship; some courts see ouster as form of AP.
Spiller v. Mackereth
co-tenant sent letter demanding absent co-tenant pay rent for half of space or move their stuff so that she could rent it out, court found no ouster as she was never prevented from entering that part of the land, locks were to protect items not keep her out, letter was not enough
Are CT in possession expected to pay rent?
In liability jurisdictions, the possessing cotenant is liable to other cotenants for their proportionate shares of the net reasonable rental value of the whole property. The net reasonable rental value is the fair rental value, less any necessary carrying charges.
In a no-liability jurisdiction, the sole-possessor cotenant bears responsibility for all of the necessary carrying charges, up to the total fair rental value of the property as determined before any deduction for expenses. The possessing cotenant may obtain contribution from the nonpossessing cotenants only for charges in excess of the fair rental value.
