Select Page

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

A.           Determine Type of co-ownership. 2
B.           Common Law form of Co-Ownership. 2
C.           CL Dispute Scenarios:3
D.           Community Property Dispute Scenarios. 6
E.           Death and Divorce of spouse: CP and CL. 7
F.           Community Property Vs. Common Law.. 7
A.           What kind of lease do we have? (always argues INTENT after classification)8
B.           L’s Claims Against nonpaying T + T’s Counter9
C.           Security Deposits. 10
D.           CQE Analysis (ALL PROP)10
E.           Illegal Lease. 11
F.           Retaliatory Eviction:11
G.           IWH Analysis – (RESD)11
H.           T’s Defenses to Nonpayment of Rent based on Tenant’s Right to Possession 11
I.            Discrimination Claims by T (FHA)12
J.            Discrimination claims by T (Civil Rights Act of 1866)13
K.           L’s Claims against Subtenants (supp pg 272)13
III.        LAND TRANSACTIONS – 40% of bar expect on exam!15
A.           4 Phases of Land Transactions. 15
B.           Listing Agreement Disputes (Case: Licari v.Blackwelder)15
C.           Real Estate Sales Contracts:15
D.           Transfer of Title and Delivery of Deed. 18
E.           Post-Closing Claims. 19
F.           Mortgages;23
A.           Grantor -Grantee Index. 24
B.           Title Acquired by a writing from a common grantor24
C.           Disputes between two immediate grantees from the same grantor.24
D.           Disputes Involving a more remote Grantee.26
E.           Title Insurance. 26
F.           Claims Based on AP.26
A.           Exam Tip. 26
B.           Characterize the Nature of the Property Right27
C.           Analysis of Express Easements and Profits. 28
D.           Scope of Easement. Out of Scope use is called a misuse/trepass. Servient owner can sue the trespasser for damages or injunctive relief.28
E.           Creation of Non-Express Easements (operation of Law)29
F.           Termination of Easements. 30
G.           Creation of Real Covenants and Equitable Servitudes(All Relate to 1st)31
VI.        ZONING.. 37
A.           Introduction. 37
B.           Nonconforming Use. 38
C.           Variance:38
D.           Special Exception. 38
E.           Other Zoning Considerations. 39
I.                    CO-OWNERSHIP CHECKLIST
A.Determine Type of co-ownership
1.Community property if:
a) When prop is acquired must have:
(1)     Married at time property was acquired
(2)     Domiciled in Community Property State when acquired property &
(a)   Separate Property – property acquired by one spouse alone either b/f marriage or while couple is domiciled in a non-community property state is NOT community property.
(b) Property acquired before marriage or acquired by couple jointly after marriage while domiciled in a non-community property state is held in common law form of ownership. [see below] (3)     used money earned by either spouse while married to acquire property. OR
b)married couples domiciled in community property had agreement to transmute to CP from CL.
c) See below for further CP analysis.
d)Tracing principle: If CP is sold the sale proceeds (and whatever the sale proceeds may be invested in) are presumed to be community property.
e) Manager of CP is kind of fiduciary. The CP must be managed for the benefit of the community.
f) CP does not recognize TBE, but a JT or TIC can be created b/w husband and wife.
2.Common Law property if:
a) Any of the above fails.
b)Generally co-tenants are not fiduciary to each other unless one co-tenant is managing property.
c) Next classify as JT/TBE/TIC
B.Common Law form of Co-Ownership
1.Joint Tenancy (JTWROS):
a) Common law Rule: 4 unities must be maintained
(1)     Time: Did co-owners acquire their interest at the same time?
(2)     Title: all tenants must acquire title by the same instrument (usually deed or will), or by joint adverse possession. (property jointly acquired through intestate succession fails the title requirement and this is always held as TIC)
(3)     Interest. Interest of the co-owners must be equal in an estate of one duration. (i.e., no life estate and fee simple) and size of each co-owners share must be equal (one cannot have 1/3 share and the other 2/3 share).
(4)     Possession. Each co-owner must have the right to possession of the WHOLE. However, after JT is created JTs can agree that one JT has exclusive right of possession. (does not break unity).  
(5)     Severance or nonexistence of any of the 4 unites creates a tenancy in common.
b)Modern Rule:
(1)     Express intent – look at language.
(2)     4 unities not required.
(3)     No straw man required – intent overrides this.
c) Comments
(1)     Straw Man. If the same person is both grantor and grantee, the unities of time and title fail (under CL) and property is held TIC
(a)   Ex. conveyance from H “to H and W as joint tenents” violates unities of time and title. Viewed as conveyance of .5 interest by H to W.
(b) Rule has been abolished in many states.
(2)     JT avoids probate – estate seized my et per tout(each individual has an undivided share of property. When one tenant dies nothing passes to surviving tenant. Rather estate simply continues in survivors freed from participation of the decedent whose interest is extinguished.
(3)     The tenant who lives the longest takes the property by herself.
(4)     Dying tenants interest cannot be devised by will!
2.Tenancy By Entirety (TBE):
a) Jxn have TBE form? (abolished in many states)
b)Satisfy 4 unities just like JT plus a fith:
(1)     Unity of Marriage.
c) can only be created in husband and wife.
(1)     Note CL presumption: if property conveyed ex “to A and B” while A and B are husband and wife – presumed to be TBE
(2)     Stautes presuming that parties take as TIC do not apply to H and W. In states that have TBE, H and W are presumed to take as TBE. In some states H and W are presumed to take as JTs.
d)Used as a shield against Creditors. Seised per tout et on per my (by the whole not by the share)
e) Surviving T has the right to survivorship
f) Not recognized in about half the states.
3.Tenancy in Common(TIC):
a) Process of elimination if JT/TBE not satisfied.
b)Default rule.Any conveyance to 2 or more unmarried persons presumed to create TIC.
c) Equal shares not necessary. Interest can be proportional to investment.
d)Each co-tenant has undivided interest in the whole property.
4.Joint Tenancy Bank Accounts
a) Nature of the joint account turns on intent of the parties not on the terms of the agreement.
b)During lifetime of account holder the amount on deposit is presumed to belong to each party in proportion to his/her contribution to the account. (absent contrary intent)
c) If a depositor is againg or sick and needs another person to pay his bills, he may open a JT intending it to be a “convenience account”. So caretaker can use acct to pay bill, but has no right of survivorship.
d)At Death of an account holder:
(1)     remaining on deposit belongs to surviving party, unless terms of acct specifies otherwise. (Law equates this to JT)
e) Difficulty in determining what was created after the fact (convenience att or JTA).
(1)     Presumption is that by signing JT card, that provides survivorship rights, the depositor intends to open a true JT acct w/ survivorship rights.
(a)   Presumption can be overcome by evidence that a convenience account was intended.(burden on challenger to show this)
f) Creditors Access to JBA
(1)     A person’s creditors can only reach the amount on deposit proportionate to that person’s contribution. (Compare to JT where two or more are deemed to own equal shares. ) 
(2)     But also consider if the acct was convenience acct or acutaully a joint acct.
C.CL Dispute Scenarios:
a) Voluntary transfer or severance of co-ownership interest
b)Death of a co-owner
c) Dispute among co-owners
d)Dispute involving creditors
e) dispute involving property rights of surviving spouse/divorce/division of marital property
2.Voluntary Transfer or Severance of co-ownership
a) Joint Tenant Transfer Analysis: Any JT can at any time destroy the right of survivorship by severing the JT.
(1)     Transfer of JT interest:
(a)   Did JT transfer interest to 3rd party? If yes, interest is severed and becomes TIC. Any remaining JTs interest remains unchanged.
(b) Did JT transfer interest to self:
(i)       CL: transfer is void, without using strawman. To convert to TIC, JT has to convey to strawman who conveys back to JT.
(ii)     Modern: Unilateral severance by conveyance (by gift or sale) to self is fine. Unity is broken, TIC created (Riddle).
(c)   Knowledge and consent not required
(d) No requirement to record
(i)       Fraud is good policy to record recording to avoid secret betrayal.
(e)   Attempted transfer at death via will – Testator must server JT to TIC BEFORE death, else not effective.
(2)     Mutual agreement to Server JT?
(a)   Did all JTs mutually agree to sever interests? (i.e.., convert to TIC).  
(i)       If yes,
(a)                       JT is severed, interest it is now TIC. Intent rather than 4 unities control.
(b) But agreements between JT for occupancy periods (or exclusive possession) does not destroy unity (summer house agreements)
(3)     Judicial Partition
(a)   A JT can be broken if a joint tenant sues for a partition.
(4)     Divorce
(a)   Some cts have statues that a divorce converts a JT b/w former husband and wife into a TiC
b)TBE Property
(1)     TBE cannot be a severed unilaterally! (unlike JT)- Main diff b/w this and JT!!
(2)     Can be severed only by divorce or death.
(a)   Maj states: divorce converts to TIC;
(b) Min states divorce converts to JT.
(3)     Neither T acting alone can sever the 5 unities and destroy right of survivorship. Main DIFF b/w JT.
(4)     Partition not allowed (Unlike JT) b/c neither spouse can destroy the right of survivorship of the other spouse.
c) TiC:
(1)     has right to transfer, sell, mortgage all / part of interest w/o consent of other cotenants.
(2)     such transfer does not end the tenancy in common.
(3)     Partition allowed (see partition section – we focused on this in class)
3.Judicial Partition.
a) Applies to JT & TiC Only; NEVER to TBE. 
(1)     Any JT or TiC can bring a suit in partition.
(2)     Even though JT must take equal shares, a ct may divide the proceeds from a partition sale in accordance with the proportionate consideration paid.
b)distributes property among the contents as solely-owned property. Notice not required.
c) Partition in Kind (softer blow than PbS & favored over PBS)
(1)     Preferred Technique – physical division of the property into separate parcels, if possible
(2)     Once divided each party owns his land in fee simple. (Delfino)
(3)     Does not apply to single family home/apartments/commercial property. usually applied to rural

f the non-deptor spouse dies first.
(2)     Effect of death on the Mortgage (applies to JT only)
(a)   Lien Theory – Maj:
(i)       If the mortgaging JT fails to survive, the mortgage is extinguished by the death of the mortgaging JT.
(ii)     If the MJT is the survivor, the mortgage extends to the entirety of the property.
(b) Title Theory – Min:
(i)       original grant of mortgage servers the mortgaging JTs interest and turns it to a TIC. So death of either the mortgagor or the other co-owner has no impact on the mortgage, which remains as an encumbrance on Mortgagors TIC share
(c)   Effect of foreclosure: [verify if this is in mail outline – then add – pg 216] (d) How can Banks protect themselves?
(i)       Look at title and ask BOTH JTs to sign mortgage.
(ii)     Policy favors lien theory b/c banks should check state of property before granting mortgage.
6.Disputes over Money Issues:
(a)   Taxes and mortgage liability
(i)       Each Co-Ten had duty to pay her share of taxes to protect the property from a tax foreclosure. A co-T cannot stop paying taxes , then buy the property at a tax sale free and clear.
(ii)     income from property, taxes owned, and mortgage liability are allocated pro rata among the co-owners based on proportionate shares in the property.
(iii)    A co-owner paying more than his share of taxes, mortgages has a right to contribution from other cotenants. (sue for accounting)
(b) Repairs
(i)       co-owner who pay for repairs is not entitled to reimbursement and can only recover cost of the repairs in the form of a credit as part of an accounting action or a partition sale and will receive credits for the cost of repairs.
(c)   Improvements
(i)       Co owner who pays for improvements is not entitled to reimbursement from other co-owners.
(ii)     Can recover costs through partition though – where he will recover for increase in value if possible.
(d) Fiduciaries – strictly speaking co-tenants are not fiduciaries to one another.
7.Disputes Involving Creditors of a Co-owner
a) JT or TIC
(1)     Creditor can reach (via foreclosure of attached lien) any partial property interest by debtor as a TIC or JT.
(2)     Foreclosure severs JT interest and converts it to TIC
(3)     Foreclosure creditor is entitled only to the sale proceeds from the TIC interest.
b)TBE (Sawada case)Are interests of one spouse in TBE subject to creditors.
(1)     Maj: neither spouse can convey land; creditors cannot reach the property & property cannot be subject to debts of one spouse only.  
(a)   Exceptions:
(i)       A creditor to both spouses can reach the TBE property. Lien attaches to entirety of the TBE and can be foreclosed.
(b) Policy for maj rule:
(i)       Protect integrity of the family unit by ensuring real property is available as housing and security for educational and other expenses.
(ii)     Should not allow actions of one spouse to affect entire intrest.
(iii)    Unfairness to creditor avoided b/c they 1)knew of spouses limited estate and 2) never relied on the asset in the first place.
(2)     Other Jxn: the interest of the debtor spouse in the estate may be sold or levied up on for his or her separate debts subject to the other spouse’s contingent right of survivorship. If co-tenant who did not incure debt outlive the other, the creditor is out of luck and loses property. Creditors can only reach survivorship right the the non-debtor spouse dies first.
(3)     Other Jxn: Right of survivorship is separately alienable as a right of survivorship. Use and profits may neither be alienated nor attached during coverture. The right of survivorship can be reached by creditors, but present interest cannot. (converse of above).
(4)     Innocent owner defense. (applies if feds try to seize property). Innocent owner defense 1) must not know about criminal activity and 2) must be innocent of activity.
(a)   TBE:
(i)       Fed Govt can reach ONLY the interest of debtor spouse, IF innocent owner defense is invoked. (property must be used for criminal activity) –
(b) TiC
(i)        If TiC govt would have constructive partition and could enter into possession (does not usually do this). It leave someone who is innocent with half the property but the full mortgage.
(c)   Some state laws provide forfeiture of property used in committing various offenses with NO exemption of innocent owner’s interest.
D.Community Property Dispute Scenarios