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Property I
SUNY Buffalo Law School
Owley, Jessica

Property Outline
 
I. Concurrent Ownership
 
          Types of concurrent Ownership
            -Tenancy in Common (default presumption)
            -Joint Tenancy
                        -Know the difference between the two
 
            Tenancy in Common
            -O conveys Greenacre to A + B
            -Each Tenant in Common has:
                        1) Undivided, fractional interest in the whole
                        2) A transferable right
                                    -Alienable, divisible, descendible
                        3) Right to use and possess the whole
 
            James v. Taylor (1998)  Pg.378
-Extrinsic evidence of the mother’s intent for the property to only be given to her children and not grandchildren
            =>Changed her will and wrote out her son after he passed
=>Court does not care for this extrinsic evidence and only looks at the Ark. Stat. § 18-12-603 (tenancy in common)
           
            Tenhet v. Boswell  Pg.382
            -10 year lease with an option to buy
            -Tenhet & Johnson owned land together with joint tenancy
                        =>Johnson leased to Boswell and during the lease Johnson dies
                                    =>Does the lease destroy joint tenancy?
=>Question to ask is whether the lease changes property interest or is it just borrowing?
                                    -There is just a temporary severance during the lease, no sever
 
            -English Common Law Rule:
            -Lease by a joint tenant to a 3rd person effects a complete and final severance
 
            -Contemporary Approach:
            -Temporary severance (wait and see approach (minority rule))
            -Intent of the parties (majority rule)
                        =>Was there intent to destroy the joint tenancy?
 
            -So who gets the land?
=>”The interest of the non-surviving joint tenant extinguishes upon his death.”
            Joint Tenancy
            -O to A as joint tenants with right of survivorship
            -Each Joint Tenant has:
                        1) An individual right to use and possess the whole property
                        2) Not alienable
           
            Four Unities (required by joint tenancy)
            1) Time: all joint tenants must acquire their interest at the same time
                        -Exception is if you already own the land and want a joint tenancy
            2) Title: written on the same piece of paper (same deed)
            3) Interest: equal fractional interest  
                        -Must have equal interest
            4) Possession: equal right to possession as a whole
=>if any unities missing/broken the joint tenancy becomes a tenancy in common
           
            Destroying a Joint Tenancy
            -Any Joint Tenant can sever this relationship unilaterally
                        -When they convey their interest the joint tenancy is severed
            -Can sever unknowingly to the other party
                        -If only 2 owners then it is a tenancy in common
            -Some jurisdictions let you sever the Joint Tenancy in your will
                        -If it is made clear beforehand (very rare)
 
            Severance
          -Only right of survivorship terminated
            -Common Law Approach:
 
            -Contemporary Approach:
                        -Temporary Severance
                        -Intent of the parties (most popular)
                                    -Leases and mortgages are not enough to sever joint tenancy
-Wait and See Approach: Find a temporary severance during a lease/mortgage and if the leaser dies it is severed (becomes a tenancy in common), if leaser survives lease then there is no severance
           
            Partition
            -Ends the Co-tenancy
-Every Co-owner has the unconditional right to seek partition of the property owned concurrently (default presumption)
                        •By Kind (default presumption ^)
                        • By Sale (most common)
            -Arkland case- Must show it is not susceptible to partition by kind
– The interest of at least 1 party will be advanced by the sale and won’t prejudice the other parties
                                                •More like factors than elements
            Arkland Co v. Harper (2004)  Pg.387
            -75 Acres of a rural nature (farmhouse etc)
            -Caudill family has owned this land for more than 100 years
 
            -Arkland purchases 67.5% of the property from some family member
                        -Looking for coal (strip mining)
                        -Asks the court to partition the land and sell it
=>every co-owner has the unconditional right to seek partition of the property owned concurrently either by:
                       

ember of                           -Demonstrate that a housing
the protected class (& that L.O. knew)               pattern or practice produces
                                                                                    racially disparate results
-Show that the L.O. treated you unfairly
because of your status
 
            •Check the facts and argue both if you can
 
          Neithamer v. Brenneman Property Services Inc. (1999)  Pg.440
             -Just has to prove that they regarded him as HIV positive
            -There was enough evidence to regard him as HIV positive
                        => Lover died of Aids
            Burden Shifting Framework:
            -Prima facie case for discrimination
            -Burden shifts to ∆ to articulate a legitimate reason for action
            -Burden then on π to show that the reason is merely pretext
 
(1) Neithamer must show that he is a member of the protected class and that ∆ knew he was in the protected class
(2) Neithamer applied for and was qualified to rent the property
(3) ∆’s rejected the rental application
(4) Property remained available
 
 
            Fair Housing Council v. Roommate.com  Supp
-Court agrees that if these preferences (7 protected) are on the site then it is a violation and the website must be shut down
-F.H.A. prohibits discrimination on the basis of “race, color, religion, sex, familial status or national origin.” in the “sale or rental of a dwelling.”
-Dwelling: “Any building, structure, or portion thereof of which is occupied as, or designed or intended for occupancy as, a residence by one or more families.”
=>Must be a living unit and have the ordinary parts of a dwelling
 
            -What’s the point of the F.H.A?
=>Not wanting L.L.’s to shape the housing community, did not want discrimination
 
-Court holds that the freedom of association (1st Amendment) means you have a constitutional right to pick your roommate