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Property I
University of Kansas School of Law
Davis, Michael J.

1.       Coownership = concurrent (NOT CONSEC) rights to present /future possession. 
a.       Tenancy in common – sep but undivided interest in prop, each w/EQUAL RIGHT to use/ possess, each interest descendible,convey, alienable by deed or will. No survivorship rights.
                                                               i.      Created by deed, will, law, intestate. Interest owned is equal right by each CoT regardless of actual share, and may be freely conveyed. Feature is Modern law: any convey to 2 or more pppl creates presumption of TIC. Terminates by partition thru mutal agree of CoTs or judicial decree.
                                                             ii.      T devises Blackacre to A and B. A and B are TIC. If A conveys to C, B and C are TIC. If B dies intestate, Bs heir is TIC with C. 
                                                            iii.      O to “A for life, rem to As kids.” A has 2 kids, B and C (vest rem FSA). A dies, B and C own AS TIC IN FSA. O didn’t define. If B dies, his heirs have TIC w/ C.
                                                           iv.      Its JT if it provides surviv . “JT and their heirs and assigns forever (2nd part seems to be TIC)…w/ survivorship”. when one dies and it goes to heirs, not surv=TIC, if convey provides SURV, its JT.  
b.      Joint tenancy –single interest is owned by 2 or more and created by same inst, possess equal interest in use of entire prop and last surv gets absolute ownership. Each regarded as single owner w/ undivided whole of prop.
                                                               i.      Created by deed, will, but NOT intestate and at comm. Law – TIME (acquire/vest same), TITLE (same instrument) INTERST (identical shares in duration), POSSESSION (each have right to whole, but one can vol give to other). Interest owned is equal right of whole by each CoT regardless of actual share, but cannot freely conveyed due to survivorship; ends at death and cant pass by will. Feature is cnveyance: if any CoT conveys interst, transferee takes as TIC, while remaining Cots continue to hold in JT. Terminates if cant agree by partition thru mutal agree of CoTs – court will sep land into sep owned parts or order sold and $ divided OR DEATH OF ONE, OR ACTS OF ONE:
                                                             ii.      Avoidance of probate: JT avoids probate (judicial supervision of deads prop/executor) b/c NO INTEREST PASSES at death. Also JT CANNOT PASS interest in will- ends at your death;nothings toseize, but still sub to fed est tax.
                                                            iii.      Unequal shares:At com law for JT, if A held 1/3 and B held 2/3 this wastn JT. NOT TRUE TODAY. ok if INTEND to sell at 1/3 and 2/3 in your life.
                                                           iv.      SEVERING:
1.       transfer: IF A and B have JT and B transfers to X, X and A become TIC. O to “A for life (LE), rem to As kids.” A has 2 kids, B and C. IF convey lang stated as JT, and C dies, B owns in FSA(surv). If B severs, it becomes TIC. ( “To a and b as JT and not TIC” is JT. “To a and b jointly” not. Intent)
a.       3 or more JTs, 1 severs, his is severed, other 2 arent. O conveys to A,B, and C as JT, then A conveys interest to D. only severs As PART of JT! He and D are TIC. (B, C (still JTs) and D each own 1/3). THEN B dies intestate, leaving H as heirs. SO C has 2/3 (Cs and Bs) and D has 1/3 (As). Bs and Hs nothing b/c dead (SURV)
b.      “To A and B as JT for their joint lives, rem to the survivor”. BOTH have JT for life w/ rem in FSA (just dep on surviving each other).
2.       1 JT convey his interest to himself. allows 1 JT to sever JT w/o a 3rd party strawman (or w/); can transfer FSA from self to self as TIC. Riddle
a.       moral hazard, not fair to let one jt severe w/o notice to other, that not all courts adopt.
b.      can also create JT in self and another w/o time and title here
3.       TRANSFER of FSA severs JT, but transfer of lease, lien, mortgage, time period DOESN’T. BUT lease dies with the JT who leased it. SURVIVOR has ownership and can kick out leased person. Harms v Sprague
a.       A and B own in JT. A conveys 10yr term to C. (No sever, not FSA) After 5 yrs, A dies devising all prop to D. Lease dies w/ person who gave it. As right to possess lmtd by his life, as is Cs possess. B has all rights, due to surv, can get rid of C. IF B DIED, lease is still good as long as A it alive; dies when A dies.
b.      Lien – claim against prop of another to secure debt payment. Mortgage – interest in land created by written inst providing security for payment of a debt or performance of duty. SEVER DOES HAPPEN IF SOLD, FORECLOSED after mortgage, lien….
c.       Even though this breaks possession and interest, still ok
c.       Relations among concurrent owners – partition
                                                              i.      PBySale, forced sale of the land and division of proceeds used only when PInKind, division of prop among the co-owners, cant be Delfina v. Vealencis
1.       BURDEN in those who want PBS is to prove w

nd w presumed to be TE. Though some creates a TIC of JT.
                                                            iii.      A and B plan to marry, 2 wks prior, buy house, take title in “A and B as TBE.” A moves and conveys interest to C. C brings partition. They WERENT married when bought, so no TBE. JT and A severed by transf, so B becomes TIC w/ C.
2.       LAND TRANSACTIONS: buying prop concerns  (C, E, C, R)
a.       SIGNING CONTRACT: you will buy and then Contract of Sale –must be valid to buy. SOF –that certain kinds of contracts in writing/ signed.
                                                               i.      ID of parties, in words of convey, grantor and grantee w/ sig; descript of premises (identifiable; address, monument, etc); (some say price …. (a check can do all these)
                                                             ii.      Excuses: Partial Performance or estoppel.
1.       Est-grantor does something to your determent; sells to one and then sells to another and B determintally relied on moving into A’s place….PP- grantee acts as if performing contract; B just started moving into A’s place, A did nothing but B asks as if doing contract….
2.       Part Performance of the contract-agreement enforceable up to amt already paid, delivered, etc. Estoppel- charging party detrimentally relies on otherwise unenforceable contract, later actions contradict what was stated. In both, buyer relies and one changes agreement.
                                                            ii.      Oral contract may be enforced despite SOF IF party seeking performance changes his position in reas relying on contract and injustice can only be avoided by courts ordering specific perf (req to perform ob of contract). Hickey
1.       check didn’t have seller IDd, so no SOF. But ESTOPPLES APPLY AS EXCUSE TO SOF. Green KNEW Hickey would sell the house after purchase. Changed her position; enforceable and P did buy.
2.       IF PARTIES MAKE ORAL AGREE IN ANTICIPATION OF LATER WRITTEN AGREEMENT, NOT LIKELY to BE ENFORCED.