property law: march 2 2010 class notes

common law concurrent interests.

five, but apparently only three matter:
(1) tenants in common: (TIC, or just cotenancy) separate but undivided interests in the property; the interest of each is decsendible and may be conveyed by deed or will. there are no suvivorship rights between tenants in common.

- in tenancy in common, each tenant has a separate but undivided interest in the whole, and accordingly
  each tenant has a right to possession of the whole.
- each tenant's interest can pass by grant, devise, or descent
- if a conveyance is made to more than one person without
- a tenancy in common is alienable, and can be transferred intestate, inter vivos and
- what type of concurrent interest is created by the grant? the assumption is that it is a tenancy in
  common if there is ambiguity.

problem.

T devises Blackacre to A and B. A conveys his interest to C. then, B dies intestate.

A and B = tenants in common

A conveys his interest to C = B and C are tenants in common

B dies intestate = C and B's heirs are tenants in common. each tenant in common owns an undivided share of the whole.

(2) joint tenancy (JTWROS): or joint tenancy with right to survivorship
per moi et per toi (mine and yours, both tenants own the whole). when one party dies nothing passes to the survivor, instead the estate continues and the decedent's interest in the estate is extinguished.

- each tenant owns the undivided whole of the property. so upon the death of one tenant, the undivided interest continues to be held by the surviving joint tenants; the deceased tenant's interest ceases to exist (this is the right of survivorship)
- the right of survivorship must be specific and must contain the four uniting factors that indicate and satisfy the intent for JTWROS

the uniting factors to create a joint tenancy are:

- time (the interest of each joint tenant must be acquired or vested simultaneously)

- title (the interest must be acquired by joint title or joint adverse possession, and cannot arise out of intestate sucession or other act of law)

- interest (the parties ust have equal undivided shares and identical interests measured by duration)

- possession (each party must have a right to possession of the whole. however, after a joint tenancy is created, one tenant can voluntarily give exclusive possession to the other joint tenant.)

if all four of these factors are not met, it is a tenancy in common. if any factor is severed, the joint tenancy is severed converting it into a tenancy in common.

(3) tenancy by the entirety: created only in husband and wife. it is the four factors of joint tenancy + marriage unity. but unlike joint tenancy, neither spouse can unilaterally sever the tenancy by the entirety, to prevent one spouse from cutting off the other's survivorship right. gifts to the married couple are as well.

unequal shares: if A owns 1/3 and B 2/3s, common law says A and B are not joint tenants. they are instead potentially tenants in common. today, this is ignored per intent.

divorce terminates a tenancy by the entirety, typically converting it to tenancy in common. 

problem 1.

O conveys "to A, B and C as joint tenants". subsequently, A conveys his interest to D. then B dies intestate, leaving H as his heir. what is the state of the title? what if B had died leaving a will devising his interest to H?
A, B and C are joint tenants (with the right of survivorship), each with an undivided interest in the whole. joint tenants is a term of art that satisfies the intent requirement of the grant.

A conveys his interest to D. D is a tenant in common, because the unity of time no longer exists under this conveyance. similarly, the unity of title is not the same interest from which B and C's tenancy were created under. the original unity is destroyed. B and C remain joint tenants, but B and C with relation to D become tenants in common. 

joint tenants by definition have equal interest. so when one joint tenant severs, he has a proportionate share equal to everyone else's. but when that is converted to a tenancy in common, their share is equal to their position. D's 

what is the state of title between B, C and D? what is each party's interest?

B and C have the right of survivorship between each other. D has an interest of a 1/3 in common with respect to B and C. B and C hold undivided 2/3 interest as joint tenants with right to survivorship.

B dies intestate, leaving H as his heir. who gets B's interest? B's interest is extinguished as to C as the survivor, because C retains the whole as a joint tenant. C has an undivided 2/3 interest as a tenant in common with D, who retains an undivided 1/3 interest. 

what if B had conveyed his interest to F, the same day A had conveyed his interest to D? B would have conveyed a tenancy in common to F, and C would lose his right of survivorship/ joint tenancy by default. all parties would be tenants in common with 1/3 ownership. 
 

B dies leaving a will devising his interest to H. the result is the same, because when B dies, his right to the property is extinguished, and you can't sever a joint tenancy when you're dead -- your death is what changes your interest. 

 
problem 2. 

T devises blackacre "to A and B as joint tenants for their joint lives, remainder to the survivor." what interests are created by the devise? how does a joint tenancy in fee simple differ?

"joint tenants for their joint lives" = this is not a joint tenancy: this is a life estate as tenants in common. and there is a remainder that exists today if neither of them survive. the designation of the remainder indicates that a right of survivorship is NOT intended! 

there is no joint tenancy that can be severed. you cannot have a remainder in land that will have a right of survivorship in another party. therefore, there is no possibility of an FSA in this situation (joint tenants for their joint lives), and therefore there is a contingent remainder, but no taker. 

A and B have a life estate for their joint lives as tenants in common. T's estate has a reversion.

how could T have created a joint tenancy? T should have made it explicit to the term of art "to A and B as joint tenants with the right of survivorship and not as tenants in common."

riddle v. harmon

why would riddle have written this deed? it terminates the unity factor of time -- she is trying to tenure the rights to the land to herself without ever being out of right. 

how else could she have done this? she could have given it to someone else to give it back to her. then she would have had a tenancy in common.  

what does the court say about that kind of exercise? this is the way that a TIC used to be severed anyway. 

what is the reason for having the strawman? because we don't have strict requirements of livery of seisin anymore (remember, where you give somebody a handful of land to transfer). 

*** ask dee for recording for this portion of the discussion*** 

a joint tenancy can be a form of estate planning, and we want to respect what someone may want to have to protect their estate after their death. we want a good reason to reduce the joint tenancy to TIC, and a writ of seisin is not really what we want to be good enough to suffice. 

what about jack riddle? what do you do if there was no way to create anything but a joint tenancy?

if joint tenancy is just a will substitute, then sure we would allow people to sever a joint tenancy until you die. what's the problem with this? "luck of the draw" -- i can create an exclusive possession situation by having the deed someplace where no one will find it unless i die. 

fraud is a concern, and it's alleviated by creating a public record. how do we avoid the problem of fraud? with a notice of recording. that way the interest is made notorious and open.

problem. 

suppose the wife had written in her own handwriting, "i convey interest to myself, to terminate the joint tenancy with my husband," and telling only her daughter, she put it into a drawer. subsequently, the husband dies and the wife destroys the deed. what result? 

problem. 

if A and B, joint tenants, die in a common disaster and there is "no sufficient evidence" of the order of death, then 1/2 goes to each tenant. suppose A and B are in a train accident, and witnesses see that A has no signs of life and B is decapitated. who survives who? 

if A murders B, the joint tenancy is severed with the murder and converts to tenancy in common. the murder then loses right of survivorship into the decedent's estate. 

problem 3. 

A and B are planning to be married. two weeks before the ceremony, they buy a house and take title in "A and B as tenants by the entirety." several years after the marriage, A moves out and conveys his interest to C. C brings an action to partition the property. what result?

severance in practice of cases...

harms v. sprague 

the issue is that by mortgaging the interest he held, john (the brother) converted the interest from joint tenancy to TIC. then john died and left a will devising everything to his "friend", sprague.  

what is the state of title as to the land that john and william held? it was joint tenancy, but now would be TIC between william and sprague. the mortgage would be against the 1/2 undivided interest held as TIC by sprague. since this is an undivided interest in the whole, the simmonses could forclose/ lien against the whole of the land. 

what's john's argument? the mortgage did not sever the joint tenancy, but upon john's death, it should not be carried over because john's interest extinguished upon his death. therefore, the mortgagee should be out of luck. 

there's two options of reading these facts: 

(1) john's interest passed to charles and then to the simmonses, which they can assert against william and charles in common. 

(2) the mortgage didn't sever the joint tenancy and john's interest which was incumbered by the mortgage during his lifetime extinguished when he died and william owns the land free and clear by virtue of survivorship. 

which option is correct? 

the court decides that creating a mortgage does not create an interest sufficient to destroy joint tenancy. the simmonses did not acquire the right to possess and use the land but only the lien on the property. 

what is a mortgage? is it an interest in the land or is it just a lien? the court follows the "lien theory" instead of "title theory" of mortgage. therefore, the unity of title required for joint tenancy was not shattered by the mortgage, because no new title was created, just a lien. 

why is the lien theory better here? because william didn't know that there was a mortgage. there was not notice.  and the simmonses are in over their head in taking on this mortgage and they should have done their due diligence to take out this mortgage. 

what effect does this ruling have on the market of mortgage? makes people do their homework, and check out the value of chain of title on the property that they are holding in security for a loan

how could john have assured the simmonses holding would be good? he could have gotten his brother's assent, or he could have severed first and transferred a TIC to the simmonses

what do we want parties to do? express their interest and bargain for certainty, bargain for contingencies

suppose harm had died first, sprague did not pay the note and the simmonses forclosed. would the entire land be subject to the mortgage or only half interest in it? 

problem. 

A and B own blackacre in joint tenancy. A conveys a 10-year term of years in blackacre to C. after five years, A dies, devising all of his property to D. what are B's rights? 

suppose that A and B sign a written agreement giving B the rentals from and possession of the land for her life. does the agreement destroy the unity of possession? upon A's subsequent death, who owns the land?

problem.

H and W are owners of blackacre in joint tenancy, and are getting a divorce. they sign a divorce agreement providing that blackacre will be sold and the proceeds divided equally between H and W. before blackacre is sold, W dies. does H have a survivorship right? 

joint tenancy bank accounts: these are the subject of much litigation because the depositors can use them for so many different intentions. 

problem.

O, a widower, opens a joint bank account with his niece, A. O tells A, "i'll want your name on this account so that in case i am sick you can go and get the money for me." O dies. is A entitled to the money in the account? 

suppose that O also gives A access to a safe deposit box by adding A's name to the signature card giving access; the lease agreement signed with the bank provides that the content of the box are owned in joint tenancy with right of survivorship. the box contains $330k in bonds and cash. is A entitled? 

problem.

H and W and their son, S, open a join savings account. H and W are in their 60s. the money comes from H's salary. H dies. W claims that hte entire amount in the account is hers and withdraws the balance. does S have any rights to the money? 

problem.

A and B have a joint savings account of $40K. how much of the account can A's creditors reach?

mildred: "awh, what's half of nothing?"
wally: "well it works both ways mildred, see burt's creditors can come after you..."

relations among concurrent owners. 

"each tenant owns an equal interest in all of the fee and each has an equal right to possession of the whole... 'neither a joint tenant nor a tenant in common can do any act to the prejudice of his cotenants in their estate.'" 

communal ownership encourages inefficient use of common property resources. there are many benefits and burdens to co-ownership. 

partition: an equitable action available to any joint tenant or tenant in common (unavailable to tenants in entirety) to terminate the cotenancy.