Property I Professor Donald J. Kochan Classes 20-21

Current Readings Common Law Concurrent Interests Common Law Concurrent Interests Pages Pages Pages Pages Tenancy in Common Tenancy in Common Joint Tenancy Joint Tenancy Tenancy by the Entirety Tenancy by the Entirety

Introduction Think again about preferences: Whether it be pooling of resources, security, or desire -- concurrent estates help to satisfy preferences of grantors and grantees Think again about preferences: Whether it be pooling of resources, security, or desire -- concurrent estates help to satisfy preferences of grantors and grantees Understand the difference between consecutive rights of possession/ownership and concurrent rights of possession/ownership Understand the difference between consecutive rights of possession/ownership and concurrent rights of possession/ownership Be sure to understand Marital Interests are related to concurrent interests, yet have some unique distinctions; and realize that community property issues are focused on in an independent class. Be sure to understand Marital Interests are related to concurrent interests, yet have some unique distinctions; and realize that community property issues are focused on in an independent class.

Tenancy in Common Created by deed, will or opertaion of law (i.e. interpretation) Created by deed, will or opertaion of law (i.e. interpretation) Presumptively favored in the face of ambiguity Presumptively favored in the face of ambiguity Only need one unity to make valid – possession Only need one unity to make valid – possession Each tenant owns undivided fractional part Each tenant owns undivided fractional part Interest is transferable Interest is transferable Destructible by partition or merger; why and how? Destructible by partition or merger; why and how? Ouster/ Causes of Action Against Tenant in Common Ouster/ Causes of Action Against Tenant in Common Good Faith/Constructive Trust Issues Good Faith/Constructive Trust Issues No right of survivorship No right of survivorship

Joint Tenancy Created by deed or will, not descent. Created by deed or will, not descent. “O to A and B and their heirs” “O to A and B and their heirs” Strict interpretation requires 4 unities: Strict interpretation requires 4 unities: time, time, title, title, interest, and interest, and possession possession A Joint Tenant owns an UNDIVIDED interest in the WHOLE; nothing fractional A Joint Tenant owns an UNDIVIDED interest in the WHOLE; nothing fractional Right of Survivorship: So, traditionally, if A dies – B takes everything; nothing passes to A’s heirs Right of Survivorship: So, traditionally, if A dies – B takes everything; nothing passes to A’s heirs How can a joint tenancy be severed inter vivos? How can a joint tenancy be severed inter vivos? Ambiguity in instrument typically NOW resolved in favor of a tenancy in common, given public policy on alienability. Ambiguity in instrument typically NOW resolved in favor of a tenancy in common, given public policy on alienability.

Tenancy by the Entirety Unity of Husband and Wife Unity of Husband and Wife Consider how that matters depending on how we define marriage Consider how that matters depending on how we define marriage Five Unities: Five Unities: Time; Time; Title; Title; Interest; Interest; Posession; Posession; Person Person First four are same as joint tenancy, fifth is person of marriage at the time of conveyance First four are same as joint tenancy, fifth is person of marriage at the time of conveyance Neither spouse may unilaterally convey away, destroy, or partition Neither spouse may unilaterally convey away, destroy, or partition Created only by deed or will, not descent Created only by deed or will, not descent Creditors – traditionally cannot reach the property for the obligations of only one spouse... Creditors – traditionally cannot reach the property for the obligations of only one spouse... Divorce – generally destroys the estate and converts to tenants in common or a joint tenancy because it destroys the 5 th unity of person Divorce – generally destroys the estate and converts to tenants in common or a joint tenancy because it destroys the 5 th unity of person

Severance Issues Concurrent interests undoubtedly handcuff one or more of the parties. Whether, when, and how we should allow them to sever and break free becomes a struggle for the law. And how much is owed to the original grantor’s intent?

Riddle v. Harmon Focus on the four unities Focus on the four unities Focus on destructability of the unities Focus on destructability of the unities Focus on Creation Focus on Creation Focus on Straw Men – intermediary devices Focus on Straw Men – intermediary devices What is “two-to-transfer”? What is “two-to-transfer”? Should “ancient vestiges of that ceremony give way to modern conveyanding realities”? Should “ancient vestiges of that ceremony give way to modern conveyanding realities”? Termination of Joint Tenancies Issues – unilateral severance issues Termination of Joint Tenancies Issues – unilateral severance issues Should the court deem some rules “archaic”? Or, do they have independent value? Should the court deem some rules “archaic”? Or, do they have independent value?

Harms v. Sprague What is quiet title? You should know by now. What is quiet title? You should know by now. What is a declaratory judgment? You should know by now. What is a declaratory judgment? You should know by now. What is a mortgage? What is a mortgage? What is a lien? What is a lien? What is a security on property? What is a security on property? What is the common law theory of title re mortgages? What is the common law theory of title re mortgages? “[N]ot as the successor of the deceased” -- Explain why this lies at the crux of the decision and the crux of a joint tenancy. “[N]ot as the successor of the deceased” -- Explain why this lies at the crux of the decision and the crux of a joint tenancy.

Relations Among Concurrent Owners Partition Partition Talk about partitioning: October 2008 Weekend Update: “Cambodian couple split house in half to avoid divorce court”, divorce_N.htm divorce_N.htm Benefits and Burdens of Coownership Benefits and Burdens of Coownership

Delfino v. Valencis Know the difference between partition in kind and partition by sale, and the conditions that satisfy an equitable AND/OR practicable reason for choosing either Know the difference between partition in kind and partition by sale, and the conditions that satisfy an equitable AND/OR practicable reason for choosing either What are the “best interests of the parties” and why doe the court consider them, and how does the court evaluate them? What are the “best interests of the parties” and why doe the court consider them, and how does the court evaluate them? Consider how the court handles alternative uses and ownership of property. Consider how the court handles alternative uses and ownership of property. Mark your notes to remember this case when we start discussing regulation next semester. Mark your notes to remember this case when we start discussing regulation next semester. Be sure to read the Notes following the case. Be sure to read the Notes following the case. Rubbish hauling – always interesting... Rubbish hauling – always interesting...

Benefits and Burdens of Co-Ownership Duties Duties Liabilities Liabilities Contractual Obligations v. Property Obligations Contractual Obligations v. Property Obligations Affirmative and Negative Affirmative and Negative Differential in Remedies Differential in Remedies Rights & Responsibilities related to: Rights & Responsibilities related to: Use Use Maintenance Maintenance Improvements Improvements

Spiller v. Mackereth Definition of Cotenancy/Exclusive Possession Definition of Cotenancy/Exclusive Possession Rental Liabilities/Continued Occupancy Rental Liabilities/Continued Occupancy Purposes/Terms of Use Purposes/Terms of Use Adverse Possession Adverse Possession Necessity of Ouster Necessity of Ouster

Swartzbaugh v. Sampson Joint Tenancy Joint Tenancy Right of Survivorship Right of Survivorship Severance issues esp. re destruction of the necessary unities, here particularly possession Severance issues esp. re destruction of the necessary unities, here particularly possession Adverse possession issues Adverse possession issues Lease issues as relevant to both the destruction of unities and the establishment of adverse possession Lease issues as relevant to both the destruction of unities and the establishment of adverse possession

Introduction to Marital Interests “Wife Wins in Canine Custody Battle” 07 Oct 2009 By Larry Yellen, FOX Chicago News Article with Video: Article with Video: fbeat/dog_divorce fbeat/dog_divorce

Concluding Thoughts Be sure you understand the reasons people might prefer to grant or to have concurrent estates, and when they might not. Think about it – it involves property implications, tort liability implications, contract implications, tax responsibility implications, family law implications, real estate and trust implications, probate implications, etc. Think about it – it involves property implications, tort liability implications, contract implications, tax responsibility implications, family law implications, real estate and trust implications, probate implications, etc. Like I have said, you cannot know those subjects if you do not know property.