1. 2. What claims do Executor and Bill have against each other? Discuss.
WEBINAR ESSAY SERIES
REAL PROPERTY ESSAY #5
MODEL ANSWER
Alice and Bill were cousins, and they bought a house. Their deed of title provided that they were "joint tenants with rights of survivorship." Ten years ago, when Alice moved to a distant state, she and Bill agreed that he would occupy the house. In the intervening years, Bill paid nothing to Alice for doing so, but paid all house-related bills, including costs of repairs and taxes.
Two years ago, without Alice's knowledge or permission, Bill borrowed $10,000 from Lender and gave Lender a mortgage on the house as security for the loan.
There is a small apartment in the basement of the house. Last year, Bill rented the apartment for $500 per month to Tenant for one year under a valid written lease. Tenant paid Bill rent over the next seven months. During that time, Tenant repeatedly complained to Bill about the malfunctioning of the toilet and drain, but Bill did nothing. Tenant finally withheld $500 to cover the cost of plumbers he hired; the plumbers were not able to make the repair. Tenant then moved out.
Bill ceased making payments to Lender. Last month, Alice died and her estate is represented by Executor.
1. What interests do Bill, Executor, and Lender have in the house? Discuss.
2. What claims do Executor and Bill have against each other? Discuss.
3. Is Tenant obligated to pay any or all of the rent for the remaining term of his lease, including the $500 he withheld? Discuss.

2. MODEL ANSWER
I. What interests do Bill, Executor, and Lender have in the house? Discuss.
CONCURRENT INTERESTS.
CO-TENANCY.
JOINT TENANT. Alice and Bill
FOUR UNITIES. Time, Title, Interest, Possession.
JOINT TENANTS WITH RIGHT OF SURVIVORSHIP. At Death, Interest of Deceased Automatically Passed to Other Joint Tenant.
SEVERANCE.
MORTGAGE.
Lien Theory States. Mortgage Does Not Sever Joint Tenancy, and Normal Survivorship Rules Apply. Equitable Estoppel May Help Lender.
Title Theory States. Unilateral Mortgage by Joint Tenant Severs Joint Tenancy, thus Both Becoming Tenants in Common, with No Right of Survivorship. Also, Mortgagee is Equitable Owner of Undivided Portion Belonging to Mortgagor. Thus, Bill’s ½ Interest was Subject to Lender’s Mortgage. Also, at Alice’s Death Her Undivided ½ Interest as a Tenant in Common Would Pass Through Her Estate Held in Trust by the Executor to be Distributed per the Requirements of Her Will.
OUSTER / ADVERSE POSSESSION.
Adverse Possession. Open, Notorious, Actual, Continuous Possession of Land for Statutory Period. Bill May Assert that He Possessed for Statutory Period
Outster / Hostility. Joint Tenants Agreed that Bill Would Possess, and Thus No Ouster Needed for Hostility.

3. II. What claims do Executor and Bill have against each other? Discuss.
RENT ACCOUNTING. Executor of Alice May be Legally Entitled to Rents or Profits Received from Use of the Land, Such as a Rental to a Non-Co-Tenant. Executor Will Seek ½ Rent of Basement Apartment.
MORTGAGE, TAXES. Executor of Alice Will be Responsible for any House-Related Claims, Such as Mortgage Payments, Repairs and Taxes.
SOLE RESPONSIBILITY OF TENANT IN POSSESSION. Some Bills are the Responsibility of the Sole Possessing Tenant, Such as Utility Bills, Because Used for Use and Enjoyment of Property.
REPAIRS. Tenants in Possession May Receive Contribution from Non-Possessory Tenants for Normal Repairs to Keep Property in Good Condition, as Long as Other Co-Tenants are On Notice of the Repairs.
III. Is Tenant obligated to pay any or all of the rent for the remaining term of his lease, including the $500 he withheld? Discuss.
INDEPENDENT V. DEPENDENT COVENANTS. Common Law Required Tenant to Pay Rent No Matter What Landlord Did Under INDEPENDENT Covenants. Modernly, DEPENDENT Covenants Allow Tenant to Take Remedial Actions if Landlord Does Not Perform Their Duties.
WARRANTY OF HABITABILITY. Failure to Provide Needed Essentials. Tenant May Move Out, Withhold Rent, Repair and Deduct from Rent, Remain and Sue for Damages.
SELF-REPAIR. Tenant May Contract to Have Repairs Done, and Deduct from Rent. Must Notify Landlord in Advance, but Landlord Never Responded. Thus, May Withhold Rent.
USE AND ENJOYMENT OF LAND. Tenant Has a Covenant that They May Use and Enjoy Land.
CONSTRUCTIVE EVICTION. Need Not Pay Remainder of Lease Because Constructively Evicted Due to Substantial Impairment of Use and Enjoyment of Land and Notice Given to Landlord.