1. Class XVIII – Concurrent Ownership Pt. 2 Prof. David Glazier Oct 26, 2006 PropertyProperty

2. Today’s Class Review of Concurrent Interests Delfino v. Vealencis - Partition in kind or by sale? Spiller v. Mackerth - What constitutes “ouster”? Swartzbaugh v. Sampson - Can one joint owner lease property unilaterally?

3. Concurrent Interests Generally Interest v. Estate - Interests define relationships between persons holding an estate - Title must still be in form of a recognized estate Concurrent interest may be in a present or future estate - Can be a life estate, fee simple, etc. - Can be a remainder, executory interest, etc. To A To B To C

4. Tenants in Common Separate but undivided interest in property - O conveys Blackacre “To A and B” Tenancy in common is: - alienable - devisable - descendible Ownership shares are fractional (e.g. ½, ¼) - Do not have to be equal, but - Rebuttable presumption of equality - Each cotenant has right to possess the whole Tenancy in common is modern default

5. Joint Tenants Right of survivorship is key attribute - share of deceased owner automatically passes at death to surviving owner(s) - cannot be devised or inherited Requires four “unities” to create: Time: interests must be created at the same time Title: interests must be created by same instrument Interest: all JTs must have identical interests Possession: all JTs must have same right to possess Severing any of the unities destroys this interest

6. Tenancy by the Entirety Neither party can unilaterally sever Gives immunity to actions by individual creditors Generally default estate where recognized - if conveyance made to husband & wife jointly Requires five “unities” to create: Time: interests must be created at the same time Title: interests must be created by same instrument Interest: all JTs must have identical interests Possession: all JTs must have same right to possess Marriage: owners must be validly married

7. Concurrent Interests Presumption parties will cooperate - No caselaw from functional examples! Legal remedies available when they don’t Ouster–tenant interferes with possession by other(s) - possessor liable for fair rent for other’s share Accounting-action for fair share of proceeds Contribution-action for costs from other cotenants Partition-action to end cotenancy - May be in kind or by sale

8. Delfino v. Vealencis (Conn. 1980) The facts: - Delfinos and Vealencis TIC of 20.5 acres -- Delfinos own 99/144 and Vealencis 45/144 -- Vealencis has house and garbage business - Delfino wants to develop 45 lot subdivision -- seeks partition by sale - Vealencis wants to keep home & business -- seeks partition in kind

9. The Law of Partition What do Conn. statutes say about partition? - Physical partition can be ordered at request of any interested party of land held by TIC - Sale can be ordered where it “will better promote the interests of the owners”

10. The Law of Partition What does common law say about partition? - Partition in kind favored over sale -- “sale w/o consent is extreme exercise” - Partition by sale should only be ordered if: (1) PIK physically impractical/inequitable, & (2) interests of owners better served by sale Owelty – PIK equalization $

11. Applying the Law to the Facts Was partition or sale appropriate here? [Rest of this story see n1 on 297-98] v.

12. Spiller v. Mackereth (Ala. 1976) The Facts as viewed by plaintiff Mackereth (Π): - Π and Δ Spiller were TIC building owners - Tenant (Auto-Rite) vacated building - Δ began using entire structure as warehouse - Installed locks which Π could not open - Refused request to vacate ½ or pay rent

13. Spiller v. Mackereth (Ala. 1976) The Facts as viewed by Δ Spiller: - Π was not using building at all -- Π never asked for possession - Locks necessary to protect Δ‘s merchandise

14. The Law of Ouster Cotenants only liable for rent to other owners if: (1) have agreement between themselves, or (2) ouster of a cotenant “Ouster” has two legal meanings (1) start of SOL for adverse possession - requires assertion of complete ownership (2) liability for rent due to denial of possession - must refuse demand to be allowed use - each can occupy whole absent the other

15. Spiller v. Mackereth Decision What did the court conclude here? - No agreement between cotenants calling for payment of rent - No ouster because Π did not demand possession -- request that Δ vacate ½ premises or pay ½ of rental value insufficient What do you advise your clients?

16. Swartzbaugh v. Sampson The Facts: - Mr. & Mrs. Swartzbaugh own a 60 acre walnut grove as Joint Tenants - Mr. S. negotiates lease of small tract of this land to Δ Sampson for boxing pavilion -- Mrs. S opposed (“women & liquor” follow) -- Sampson knew Mrs. S would not sign - Mrs. S sues Δs Sampson and Mr. S seeking invalidation of lease

17. Swartzbaugh v. Sampson What does the court tell us about JTs? - Each tenant has equal right of possession -- Can demand right to joint possession -- Can demand share of rent from 3d party - Can’t prejudicially affect rights of other JT - But can subject fair share to liens - Lease valid as to JT’s share

18. Looking Ahead Office hours today: 2:00 – 3:30 (v. 12:30-2:00) Next Class – Tues 10/31 Lecture on Marital Property - Skim text 310-359 - Some highlights: -- Sawada v. Endo (Hawai’i case) pp. 313-317 --- discusses different state views on property -- Text on divorce pp. 321-22 -- Text on death of a spouse pp. 335-37 -- Text on community property system pp. 338-46 -- Goodridge v. Dept. Health (Mass.) pp. 346-56 --- same sex marriage case

19. Questions?