Waldeck
Property
Spring 2015
Seton Hall Law
Grade received: A
Concurrent Interests Autonomy v. obligations as co-owner.
*1. Tenancy in Common- (Presumption- chosen estate when ambiguous)
(*Most Common)
Separate (A,D,I) but undivided interest in the whole (Right to use whole)
Rights= Use; Exclude 3rd parties; Receive share of Property's Income
-High degree of autonomy
-No co-tenant can exclude another no matter % share.
-NO right of survivorship
2. Joint Tenancy-Each owner of whole (1/2 jxns require 4 unities)
-Best creation language=”joint tenants w/ right of survivorship.”-Not all req. that
-Not devisable or Inheritable.
-Alienates- then becomes TIC for new owner.
-Don't need to give notice to JT's–can unilaterally sever by conveying.
Rights=Use, exclude 3rd parties, share of property's income, survivorship.
-Survivorship= when joint tenant dies, their interest is extinguished & others automatically receive their share.
-Typical users of joint tenancy= married couples
-PP: Benefit= don't have to wait for probate court order to get property like under will.; automatic; cheap
4 Unities For JT & Tenancy by Entirety (1/2 of Jxns Require)(D)
1. Time- Interests created @ same time
2. Title- Interests created in same instrument
3. Interest- All Shares Equal
4. Possession-All have equal and undivided right to use entire property.
-If any of unities missing TIC created, not JT.
-Use Strawman to create JT to fix 4 unity problem if you own already.
-If a unity is severed/messed up, then it switches to TIC.
-Jxn req. intent to create then intent req. to sever (Tenhet v. Boswell).
Lease doesn't destroy JT- Clear Intent Required To Severe; Lease destroyed on JT Lessee's Death
Tenhet v. Boswell- (Leasehold doesn't destroy JT & expires on JT Lessee's death- JT's expectancy interest of survivorship trump's lessee's interest)
-Co-owner leased out property with option to purchase in lease, but died.
*Lease destroyed when JT that leased dies.
PP: Preserve justifiable expectations of other JT. Lessee should have done title check before leasing property.
Implication if severed: TIC created & heirs get TIC interest.
Lien Theory of Mortgage- mortgage akin to lien on house- no transfer of title.
Title Theory of Mortgage- gives mortgage entity issuing title to the property.
-ALMOST ALL JXNS- MORTGAGE DOESN'T AFFECT JT UNITIES
(D)-50/50 Split- IF MORTGAGE SURVIVES JT
-Bank can protect against losing mortgage by requiring all JTs to sign & doing title search in recording office.
PP: incentivize bank to deal w/ husband & wife.
-Strategy-If default on mortgage & alive then move for partition action as quickly as possible before JT dies.
Lien Theory of Mortgages- JT Not Destroyed & Mortgage Extinguished
Harms v. Sprague- (Mortgage doesn't destroy JT w/ survivorship so on Bro's death, other JT gets all & mortgage doesn't survive life of JT).
Harms bros buy property as JTs. 1 bro gives couple mortgage on his 1/2 interest on property. John's heir argues mortgage severs JT & changes to TIC.
3. Tenancy by the Entirety- (only b/w married persons)
Create=All 4 unities + married.
Cannot easily be severed unilaterally- unlike joint tenancies.
(Consent or divorce to sever).
Rights: Use, exclude 3rd parties, receive an equal share of income.
Actions Among Co-Owners
-Property law generally doesn't limit the use of co-owned property or dictate much among the owners.
(TIC & JT)
Recurring Costs- All co-tenants must contribute in proportion to % share.
Necessary Repairs- Cost shared b/w cotenants- but not immediate right to contribution- only when property sold.
Improvements- No contribution right to tenant that pays, but tenant can be compensated for value added to property when sold.
Easement- Right to use land.
-Can be problematic when owners not related- hurt alienability b/c must share w/ strangers.
Partition Action- Divide property b/w them
Partition in Kind- physically dividing property
*-Court stated preference but majority are partition by sale
Partition by sale-sale of property & $ divided based on relative shares.
Factors:
-How property used
-Relationship of parties
-Is partition in kind practical w/ character of land?
-Best protect all owners (Delfino- sis living on land too)
-Preserve the value of the property.
PIK√: Economic Analysis NOT Always Controlling- Protect ALL Interests
Delfino (Lived on land & ran garbage biz so Partition in Kind despite economic analysis pointing to partition by sale & bros wanting to build houses).
*Residence v. commercial has big impact on analysis.
Only when:
1. Parties agree to sale; or
2. Dramatic devaluing from splitting land;
A. Divided property no economic feasible use
B. # of co-owners is too large
Cash compensation can cover diff. in value
-With Pure Econ Analysis- house may actually decrease value of land.
-BUT- might not always use economic analysis. (Delfino)
Ouster-Co-owner never trespasser–always right to use whole.
Ouster Requirements: (Proving is tough- (Swartzbaugh v. Sampson-no ouster for boxing pavilion lease.)
1. Currently exclusive use of property (or portion)
2. Denies possession after a reasonable request to use (Spiller v. Mackerth- locks don't suffice b/c used to protect biz).
-If ouster-co-owner may recover proportionate share of fair market rental value.
Implications of Showing Ouster
1. Adverse Possession starts (actions deny existence of co-tenancy)
2. Rent can be demanded or can get court order for access
Must Demand Possession to Show Ouster; Occupying Co-Tenant doesn't have to pay rent unless OUSTER
Spiller v. Mackerth- (Locks on door not ouster b/c didn't demand to enter & locks used to protect merchandise).
-3rd party rented- Spiller & Mackerth split rent. Then 3rd party moved out and spiller moved in. Mackerth wants $ b/c no other 3rd party will rent–wants $ from Spiller for rent.
No Rent B/C Ouster NOT Proven
Swartzbaugh v. Sampson-(Wife can't get rent until she proves ouster- if ouster proven then can get rent; Lease still valid b/c interest in JT is alienable- so can lease & JT still alive)
-JTs w/ right of survivorship. Husband leases for boxing pavilion. He can lease is 1/2 interest w/ right to use the whole.
Strategy- Become annoying to get ousted so you can demand rent.
Landlord-Tenant (4 Types of Leases)
Leasehold=type of present possessory interest followed b
no constructive eviction despite apartment being hell hole).
-Apt w/ roaches, no heat, holes in floor a baby can fit.
PP: Limited obligations to T b/c of history
CON PP: If you require repairs, apts. off mkt & supply down so prices up.
More landlord obligations increases cost of housing especially for the poor.
–courts balance by construing health & safety narrowly.
T Rights if Breach IwoH
L options: If T breaks lease
1. Move out and terminate K
-risky might be liable for all rent for duration
2. Repair and deduct cost from rent
3. Reduce rent equal to fair rental value in current state
4. Remain, pay rent & sue. *safest
-Damages: (Like K so)
-Compensatory-
-rent (reduce by mkt value), 0 possible (Hilder)
-discomfort, annoyance, cost of repairs
-Punitive- so atrocious that LL deserving (Hilder)
PP=deter future wrongdoer
1. Surrender- dissolve lease.
2. Ignore- (Minority)- Act like T is there and demand $.
3. Re-let (Majority)- must try to find new tenants- (Duty to mitigate damages).
Defensive use of Implied Warranty of Habitability; Punitive Awarded
Hilder (Rent abatement is valid b/c breach of implied warranty. Don’t have to leave. Rental value =0, punitive awarded).
-Broken window, no front door key, toilet clogged, bedroom light broken, odor of raw sewage. Tenant brings lawsuit for hellish apt (atypical- most T's don't pay and L brings suit for rent).
Assignments and Subleases (Privity req. to Sue)
Assignment- grants full interest away then privity of estate b/w L & T destroyed.
Subleases- not full estate granted and privity still b/w L & T.
-Privity of K-(Lease agreement)-always stays b/w L & T, until lease ends or L grants novation. (sticky).
-Privity of Estate- who gives property back to owner. Determined by if A or S.
-Look at privity of K 1st then privity of estate as gap-filler.
Sublease- Time Left on Lease- Less Than Full Interest
Christensen v. Tidewater- (No Privity w/ Tidewater b/c sublease created since less than full interest was granted so privity of estate & K remain w/ non-profit co).
-Recycling Co. ceases operations and signs 60 day sublease w/ Tidewater.
Assignment- So Privity of Estate & Can Take Property Back
Italian Fisherman v. Middlemas (No privity of estate to I.F. b/c assigned away whole interest to Armands. Still liable for rent b/c of privity of K. Privity of estate b/w Armands and Middlemas- so they retake since Armand's defaulted).
-Damages will be determined in present & will incorporate chance of new lessee defaulting (Prevent litigation for continually coming up).
