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Property II
University of Georgia School of Law
Appel, Peter A.

Property Outline – Appell – Spring 2010
Common Law Concurrent Interests
5 types of concurrent issues known at common law
·          Tenancy in Common
o   Separate but Undivided Interest in property(roommate in APT)
o   Interest can be proportional to interest
o   Interests of each tenant in common is descendible and may be conveyed by deed or wiLL
o   No survivorship rights
§ Can leave share to whoever
o   Can be partitioned (ability to exit by partition)
§ Partition in Kind
§ Partition by Judicial Sale: orders property sold and divide proceeds by investment %
o   Ex: T devises Blackacre to A and B
§ A and B tenants in common
§ If A conveys interest to C, B and C are tenants in common
§ If B dies intestate, B’s heir is a tenant in common with C
o   Today this type of tenancy is presumed, unless clear evidence of JT
·          Joint tenants
o   Right of survivorship (main point)
o   Estate is seised per my et per tout: each individual has a separate share in the property
o   Four “unities” essential to a joint tenancy
§ (1) Time – JT must receive their interests at same time
§ (2) Title – aLL joint tenants must acquire title by the same instrument or by a joint adverse possession; cannot arise by intestate succession or other act of law
§ (3) Interests (equal shares) – each JT must have the identical interest in the property
                                                                                                                                        i.      Same share of the undivided whole
                                                                                                                                      ii.      Each JT must have same durational estate
§ (4) Possession – at creation each JT must have the right to possession of the whole property; however, one joint tenant can voluntarily give exclusive possession to the other joint tenant; also essential to tenancy in common
o   At common law JT can’t be created w/o the four unities being satisfied (TIC results otherwise)
o   Can be partitioned
o   Modern Tax law looks beyond some of these unities as people use them to avoid taxes
o   Transferred considered automatic upon death of other JT
o   Joint tenancy can be severed
§ Destruction of any one of the 4 unities severs the joint tenancy
§ Can be converted to a tenancy in common by mutual agreement severing one of the four unities, b/ms TIC
                                                                                                                                        ·      One party can convert it into a TIC unilateraLly by conveying his interests to a third party
                                                                                                                                        ·      A party may bring an action for a judicial partition, in which a court wiLL either physicaLly partition the tract of land into separately owned parts or order the land sold and divide the proceeds among the tenants
o   Some state statutes abolish the requirement of the four unities and assert joint tenancy may be created by stating the intent to do so
·          Tenancy by the entirety (not recognized by aLL states)
o   Must have 4 unities of JT + marriage
o   Can only be created w/in marriage (exception: Hawaii, which aLLows it between persons prohibited from marrying each other)
                                                                                                                                        ·      Recognized by whole of the marriage and not by shares
                                                                                                                                        ·      Therefore, no partition
o   Husband and wife merge into 1 person at common law
o   No Severance
o   Neither husband nor wife can defeat the right of survivorship of the other by a conveyance of a share of their interest to a third party; only by a conveyance by husband and wife together
o   Divorce terminates the tenancy (fifth unity destroyed); then parties usuaLly become TIC
·         English common law favored joint tenancies over tenancies in common; today tenancy in common favored
o   A conveyance “to A and B as joint tenants and not as tenants in common” wiLL create a joint tenancy; something even a bit less might not
o   Some states require one specify that there is a right of survivorship if trying to form a JT
o   A few states have eliminated joint tenancy entirely
·         Common law presumed an intention to create a tenancy by the entirety
o   StiLL has some force in states that stiLL retain the tenancy
o   In some of these states a conveyance to husband and wife wiLL be presumed to create a tenancy in common or joint tenancy
·         The granting clause of a deed is given priority over the habendum clause (part that seeks to describe the type of title granted) unless the language of the granting clause is ambiguous
·         Avoidance of probate by JT
o   Joint tenancies are popular (especiaLly between husband and wife) because a joint tenancy is the practical equivalent of a wiLL, but at the joint tenant’s death, probate (expensive and timely) of the property is avoided
o   Joint tenancy avoids probate because no interest passes on the joint tenant’s deathàsurvivor’s ownership of the whole continues without the decedent’s participation
·         Joint tenant cannot pass her interest in a joint tenancy by wiLL
·         If a creditor acts during a joint tenant’s life, the creditor can seize and sell the joint tenant’s interest in property, severing the joint tenancy
·         If a creditor waits until after the joint tenant’s death to act, the decedent joint tenant’s interest has disappeared; thus there is nothing to seize
·         Equal shares
o   This requirement at common law makes no sense today; in

divorce is only remedy)
o   Court wiLL order either
§ Partition in Kind – Physical division of the property
§ Partition by Sale – Sale and division of the sale proceeds
o   Delfino v. Vealencis (292): P brought an action seeking a partition of property they owned as tenants in common with D by sale with a division of the proceeds according to the parties’ respective interests; D appeals that a partition of kind should have been granted; court agrees
o   RULE: Partition in kind historicaLly presumed unless impractical; modern trend is partition by sale
§ Cts. Prefer Partition in Kind b/c don’t like selling people’s property w/o their assent
o   Partition in Kind wiLL be ordered unless a party can prove either:
§ (1) Physical attributes of the land are such that a partition in kind is impracticable or inequitable
§ (2) Interests of the owners would be better promoted by a partition of sale
§ (3) The burden is on the party requesting a partition by sale to demonstrate that such a sale would better promote the owners’ interests
o   Other factors considered: trial court failed to give consideration to the fact that the D has been in actual and exclusive possession of a portion of the property for some time, derives her livelihood from the operation of a business on the property, and that partition by sale would force her to move, etc.
o   Partition does not give it to who wants it more, but who wants it and has the cash to back it up
o   Ark Land Co. v. Harper(298) – partition by sale can work hardship on owners unwiLLing to sell because they have emotional attachments to the land; money alone can’t compensate for the sentimental loss that sale would entail
o   Johnson v. Hendrickson(298) – no weight to the interest of D and sons who lived on the property by ordering a partition by sale if there are conditions that might depreciate the value of land
o   Gray v. Crotts(299) – property should be divided into four parcels of equal value, and then the cotenants should draw lots to determine who received which parcel (irrelevant if one cotenant lived adjacent a particular plot); neither party receives an economic advantage
o   Efficiency issue: 
o   Idea that one cotenant would use the land to his most beneficial use (which may not be the best for the other cotenants)
o   Partition the land in kind would put the economic impact of use on each cotenant