Property Outline
McConnell
Law gives us: predictability, Foreseeability, Dependability
Chapter Five: Co-Ownership and marital Interests
Tenancy in Common= To A and B – no rights of survivorship
Joint Tenancy= to A and B joint- rights of survivorship
Tenancy in the Entirety= joint + marriage
JT and TC
1. time
2. title
3. interest
4. possession
TE all four plus #5. Marriage
Ownership may be divided among two or more persons in the sense that they have consecutive rights of possession, referring to situations when two or more persons have concurrent rights of present or future possession.
Three Concurrent Interests: tenancy in common, the joint tenancy, and the tenancy by the entirety.
· Tenancy in common
o Have separate but undivided interests in the property; the interest of each is descendible and may be conveyed by deed or will
o No survivorship rights
· Joint Tenants
o Right of survivorship
o Regarded as a single owner
o Each share 100%
o When one joint tenant dies nothing passes to the surviving joint tenant or tenants, rather, the estate simply continues in survivors freed from the participation of the decedent, whose interest is extinguished
o Four Unities Essential to Joint Tenancy:
§ Time- must be the same time
§ Title- same instrument or by joint adverse possession
§ Interest- equal, undivided shares and identical interests
§ Possession- right to possession as a whole
· Tenancy by the Entirety
o Can be created only in husband and wife
o All Four Unities of Joint Tenancy plus a 5th:
§ The Unity of Marriage
o Considered to be held as one person at common law
o Neither husband or wife can defeat the right of survivorship of the other by a conveyance of a moiety to a third party, only a conveyance by husband and wife together can do so
Riddle v. Harmon
Testator unilaterally terminated a joint tenancy held with plaintiff spouse by reconveying her joint tenancy interest to herself as tenant in common in order to dispose of her interest in the property by will. The trial court quieted title to plaintiff on summary judgment, and defendant executrix appealed. The court held that one joint tenant could unilaterally sever the joint tenancy without the use of an intermediary device. The court found no reason to perpetuate the archaic rule that one could not transfer property to himself and concluded that a contrary holding would defeat the intention of the grantor.
· The most familiar technique for unilateral termination in use of an intermediary strawman
o In order to create a valid joint tenancy where one of the proposed joint tenants already owned an interest in the property it was first necessary to convey the property to a disinterested third person, a “strawman” who then conveyed the title to the ultimate grantees as joint tenants
· The steps in the current case to accomplish this objective involved:
o A letter written from her to attorney directing him to prepare a power of attorney naming him as her attorney in fact for the purpose of termination
o Her execution and delivery of the power of attorney
o Her attorney’s execution and delivery of a quitclaim conveying her interest in the property as third party
o Third party execution and delivery of quitclaim deed re-conveying that interest to her
· Held: termination
o There is no question but that the decedent here could have accomplished her objective- termination of the joint tenancy
o One joint tenant may unilaterally sever the joint tenancy without the use of an intermediary device
Harms v. Sprague
OVERVIEW: Plaintiff owned property with his brother in joint tenancy. During his lifetime, plaintiff’s brother mortgaged his interest in the property to defendants. Upon his brother’s death, plaintiff brought an action against defendants to quiet title. Trial court judgment in favor of defendants was reversed on appeal, and defendants appealed. The court affirmed on the grounds that the joint tenancy was not severed when plaintiff’s brother mortgaged his interest, because a mortgage is only a lien and does not destroy the unity of title. Further, the court held that the mortgage did not survive plaintiff’s brother’s death, because the lien, along with his interest, extinguished upon his death.
OUTCOME: Judgment affirmed on the grounds that mortgage did not sever joint tenancy, and mortgage lien, like property interest, did not survive plaintiff’s brother’s death.
Issues:
-Does a joint tenancy severed when less than all of the joint tenants mortgage their interest in the property?
-Does such a mortgage survive the death of the mortgagor as a lein on the property?
o A lein on a joint tenants interest in property will not effectuate a severance of the joint tenancy, absent the conveyance by a deed following the expiration of a redemption period
o A mortgage is merely a lein on the mortgagor’s interest in property rather than a conveyance of title from mortgagor to mortgagee, the execution of a mortgage by a joint tenant, on his interest in the property, would not destroy the unity of title and sever the joint tenancy
o A joint tenancy has been defined as a present estate in all the joint tenants, each being seized of the whole
Holding: The mortgage executed does not survive as a lein on the plaintiffs property
o A surviving joint tenant succeeds to the share of the deceased joint tenant by virtue of the conveyance which created the joint tenancy, not as the successor of the deceased
o Property right of the mortgaging joint tenant is extinguished at the moment of his death
Relations among Concurrent Owners
o Each tenant is entitled to possession of the entire parcel of land yet he cannot exercise that possession without coming into conflict with the reciprocal right of his co-tenant
o Partition
o Concurrent owners might decided to terminate a cotenancy
o If they agree on a division of property, no problem arises
o But when they cannot agree, this action is available to any joint tenant or tenant in common (unavailable to tenants by entirety)
o A partition is a term used in the law of real property to describe an act, by a court order or otherwise, to divide up a concurrent estate into separate portions representing the proportionate interests of the tenants.
o Any tenant who owns an undivided concurrent interest in land can seek such a division. In some cases, the parties agree to a specific division of the land; if they are unable to do so, the court will determine an appropriate division.
o There are two kinds of partition which can be awarded by court:
o partition in kind and partition by sale.
o A partition in kind is a division of the property itself, whereas partition by sale constitutes a forced sale of the land, followed by division of the profits thus
were put on the building, yet not evidence that he was attempting to do anything other than protect the merchandise in the building
Held: the fact that S placed locks on the building, without evidence that he intended to exclude the other cotenants, is insufficient to establish his liability to pay rent. Unable to find any evidence which supports a legal conclusion of ouster
Notes:
When a cotenant is in exclusive possession of concurrently owned property, the majority holds that, unless there has been an ouster, the cotenant in possession does not have to pay a proportionate share of the rental value to the cotenants out of possession.
Fiduciary duties:
o Generally, cotenants are not fiduciaries with respect to each other. Each cotenant is expected to look after his or her interest
o Situations where duty is imposed:
o Where one cotenant buys in concurrently owned property at a mortgage foreclosure or tax sale and then asserts a superior title against cotenants
o A claim of adverse possession by the cotenant in exclusive possession
Swartzbaugh v. Sampson
OVERVIEW: Defendant husband and plaintiff wife owned property in joint tenancy with a right to survivorship. Defendant husband and defendant lessee negotiated and agreed to sublet a portion of the land for a boxing pavilion. Throughout the negotiation, plaintiff made it known that she was opposed to the lease and remained uninvolved in the negotiation. Plaintiff did not sign the lease agreement. Defendant husband maintained all of the income from the lease agreement. Plaintiff brought suit to cancel the lease. The lower court dismissed the action on the basis of nonsuit. On appeal, the court affirmed the judgment and held that where one tenant leases common property to a third party, the other tenants in common cannot cancel the lease or recover exclusive possession of the entire property.
OUTCOME: Where one tenant leases common property to a third party, the other tenants in common cannot cancel the lease or recover exclusive possession of the entire property; judgment affirmed.
Severed:
o An estate in joint tenancy can be severed by destroying one or more of the necessary unities, either by operation of law, by death, by voluntary or certain involuntary acts of the joint tenants, or by certain acts or omissions of one joint tenant without the consent of the other
-One of the essential unities of joint tenancy is that of possession
o Each tenant owns an equal interest in all of the fee and each has an equal right to possession of the whole
o It is a general rule that the act of one joint tenant without express or implied authority from or the consent of his cotenant cannot bind or prejudicially affect the rights of the latter
