I. CO-OWNERSHIP AND MARITAL INTERESTS a. Common Law Concurrent Interests i. 5 types of concurrent issues known at common law 1.

Tenancy in Common o Separate but Undivided Interest in property(roommate in APT) o Interest can be proportional to interest o Interests of each tenant in common is descendible and may be conveyed by deed or will o No survivorship rights (last person living gets it all)  Can leave share to whoever o Can be partitioned (ability to exit by partition)  Partition in Kind  Partition by Judicial Sale: orders property sold and divide proceeds by investment % o Ex: T devises Blackacre to A and B  A and B tenants in common  If A conveys interest to C, B and C are tenants in common  If B dies intestate, B’s heir is a tenant in common with C o Today this type of tenancy is presumed, unless clear evidence of JT 2. Joint tenants o Right of survivorship (main point) o Estate is seised per my et per tout: each individual has a separate share in the property o Four “unities” essential to a joint tenancy  Time – JT must receive their interests at same time  Title – all joint tenants must acquire title by the same instrument or by a joint adverse possession; cannot arise by intestate succession or other act of law  Interests(equal shares) – each JT must have the identical interest in the property i. Same share of the undivided whole ii. Each JT must have same durational estate  Possession – at creation each JT must have the right to possession of the whole property; however, one joint tenant can voluntarily give exclusive possession to the other joint tenant; also essential to tenancy in common o At common law JT can’t be created w/o the four unities being satisfied(TIC results otherwise) o Can be partitioned o Modern Tax law looks beyond some of these unities as people use them to avoid taxes o Transferred considered automatic upon death of other JT o Joint tenancy can be severed  JT can sever it by conveyance, turning it into TIC  Destruction of any one of the 4 unities severs the joint tenancy

4. 5. no partition o Husband and wife merge into 1 person at common law o No Severance o Neither husband nor wife can defeat the right of survivorship of the other by a conveyance of a share of their interest to a third party. in which a court will either physically partition the tract of land into separately owned parts or order the land sold and divide the proceeds among the tenants o Some state statutes abolish the requirement of the four unities and assert joint tenancy may be created by stating the intent to do so Tenancy by the entirety (not recognized by all states) o Must have 4 unities of JT + marriage o Can only be created w/in marriage (exception: Hawaii. which allows it between persons prohibited from marrying each other)  Recognized by whole of the marriage and not by shares  Therefore. Can be converted to a tenancy in common by mutual agreement severing one of the four unities  One party can convert it into a tenancy in common unilaterally by conveying his interests to a third party  A party may bring an action for a judicial partition.3. then parties usually become tenants in common English common law favored joint tenancies over tenancies in common. today tenancy in common favored o A conveyance “to A and B as joint tenants and not as tenants in common” will create a joint tenancy. only by a conveyance by husband of wife together o Divorce terminates the tenancy (fifth unity destroyed). 7. something even a bit less might not o Some states require one specify that there is a right of survivorship if trying to form a JT o A few states have eliminated joint tenancy entirely Common law presumed an intention to create a tenancy by the entirety o Still has some force in states that still retain the tenancy o In some of these states a conveyance to husband and wife will be presumed to create a tenancy in common or joint tenancy The granting clause of a deed is given priority over the habendum clause (part that seeks to describe the type of title granted) unless the language of the granting clause is ambiguous Avoidance of probate by JT o Joint tenancies are popular (especially between husband and wife) because a joint tenancy is the practical equivalent of a  . 6.

but is a strawman required to terminate a joint tenancy? NO o Problems Page 284 2. One joint tenant may unilaterally sever the joint tenancy without the use of an intermediary device. will. eliminating the husband’s suvirvorship rights. survivor’s ownership of the whole continues without the decedent’s participation 8. If a creditor waits until after the joint tenant’s death to act. nothing to seize 11. Joint tenant cannot pass her interest in a joint tenancy by will 9. o Does mortgage sever the JT?  Lien Theory: Mortgage is merely a lien on the mortgagor’s interest rather than a conveyance of title from mortgagor to mortgagee and would not destroy the unit of title and sever the JT . Unequal shares o This requirement at common law makes no sense today. the creditor can seize and sell the joint tenant’s interest in property. one could not create a joint tenancy in himself and another by a direct conveyance (necessary unities of time and title not met if so)  Could be done through conveying one’s interest to a “strawman” who then conveyed the title to the ultimate grantees as joint tenants  A strawman not needed to create a joint tenancy in California. but at the joint tenant’s death. . severing the joint tenancy 10. . If a creditor acts during a joint tenant’s life. courts will divide the proceeds of each joint tenancy according to their intent Severances of Joint Tenancies 1. probate (expensive and timely) of the property is avoided o Joint tenancy avoids probate because no interest passes on the joint tenant’s death o Decedent’s interest vanishes at death.ii. By Mortgage o Harms v. thus .  Can the decedent unilaterally terminate a joint tenancy by conveying her interest from herself as joint tenant to herself as tenant in common? Court says yes. increasingly ignored by courts o If parties intend the proceeds from sale of their joint tenancy property to be divided according to their value of intent. Sprague(285): Brother J mortgaged his share of the property he owned w/ hits brother W w/o W’s knowledge/assent.  She could have sued for partition. Harmon(280): Changed JT to TIC so she can will her portion to another. to help his friend pay for other land. By Conveyance o Riddle v. the decedent joint tenant’s interest has disappeared. broken one of the unities o At common law.

burden of proof placed upon those challenging the joint tenant to prove otherwise  Regarding present rights. not a severance o In JT. iii. Joint Tenancy Bank Accounts o Joint and survivor bank account have been the subject of much litigation because they are used by depositors with different intentions and for a variety of purposes o true joint tenancy account – O makes a deposit in into O & A’s joint account with the intent to make a present gift of one-half the sum deposited and survivorship rights to A  Banks prefer joint tenancy accounts. 290 iv. recourse to the equitable action or partition is necessary o available to any joint tenant or tenant in common (unavailable to tenants by the entirety – divorce is only remedy) o Court will order either  Partition in Kind . Vealencis(292): P brought an action seeking a partition of property they owned as tenants in common with D by sale with a division of the proceeds according to the  . Relations among Concurrent Owners 1. etc)  Initially much resistance.Physical division of the property  Partition by Sale . permissible in many jurisdictions now o convenience account .Sale and division of the sale proceeds o Delfino v. mortgage doesn’t survive the death of the mortgagor. not signed.Title Theory: mortgage was a conveyance of a legal estate vesting title to the property in the mortgage. has little risk o payable-on-death account – It’s mine until I die and then it is yours  Not permitted in some jurisdictions because it viewed as essentially a will (but with no witnesses. o Here.O makes a deposit into O & A’s joint account but intend that A only have the power to draw on the account to pay O’s bills and not for A to have survivorship rights (similar to power of attorney)  Majority of jurisdictions hold the surviving joint tenant take the sum remaining on deposit in a joint account unless there is clear and convincing evidence that a convenience account was intended. Lien Theory. Destroys unity and severs the JT. Partition: If concurrent owners who wish to terminate a cotenancy cannot agree on a division of the property or the proceeds from its sale. the majority of jurisdictions hold that the joint account belongs to the parties in proportion to the net contribution of each party  Problems pg.

Mackereth(300): Mackereth brought action against Spiller after Spiller began using the building both owned as TIC as a warehouse. M argued S was an ouster . court agrees o Partition in kind historically presumed unless impractical. D appeals that a partition of kind should have been granted. neither party receives an economic advantage o Efficiency issue: o Idea that one cotenant would use the land to his most beneficial use (which may not be the best for the other cotenants) o Partition the land in kind would put the economic impact of use on each cotenant 2. etc.parties’ respective interests. o Partition does not give it to who wants it more. Hendrickson(298) . and then the cotenants should draw lots to determine who received which parcel (irrelevant if one cotenant lived adjacent a particular plot).partition by sale can work hardship on owners unwilling to sell because they have emotional attachments to the land. but refusing to vacate or pay half the rental value after Mackereth wrote a letter to Spiller demanding he do so. Crotts(299) . and that partition by sale would force her to move. money alone can’t compensate for the sentimental loss that sale would entail o Johnson v.property should be divided into four parcels of equal value. Sharing the Benefits and Burdens of Co-ownership o Spiller v. Harper(298) . v.no weight to the interest of D and sons who lived on the property by ordering a partition by sale if there are conditions that might depreciate the value of land o Gray v. modern trend is partition by sale  Cts. derives her livelihood from the operation of a business on the property. Prefer Partition in Kind b/c don’t like selling people’s property w/o their assent o Partition in Kind will be ordered unless a party can prove either:  Physical attributes of the land are such that a partition in kind is impracticable or inequitable  Interests of the owners would be better promoted by a partition of sale  The burden is on the party requesting a partition by sale to demonstrate that such a sale would better promote the owners’ interests o Other factors considered: trial court failed to give consideration to the fact that the D has been in actual and exclusive possession of a portion of the property for some time. but who wants it and has the cash to back it up o Ark Land Co.

Thus. bright line rule Swartzbaugh v. The joint tenant not joining in the lease is not bound by its terms and can recover from the tenant of his cotenant . puts the lessee in the enjoyment of a right of possession which he.  Exception arises to this rule where one JT in possession leases all of the joint property without the consent of his cotenant and places the lessee in possession 1.o  There must be evidence which establishes an ouster before S is required to pay rent to M 1. already had and by doing so does not prejudicially affect the rights of the cotenant our of possession 2. The other cotenants have been ousted or 2. The cotenant in possession has agreed to pay rent  Minority view: a cotenant in exclusive possession must pay rent to cotenants out of possession even in the absence of ouster. The liability for the occupying cotenant for rent to other cotenants a. must claim absolute ownership and be a denial of the cotenancy relationship by the occupying tenant  Majority view: the cotenant in possession does not have to pay a proportionate share of the rental value to the cotenants out of possession unless: 1.  General rule: the act of one joint tenant w/o express or implied authority from or the consent of his cotenant cannot bind or prejudicially affect the rights of the latter cotenant. as lessor. The beginning of the running of the SOL for Adverse Possession OR 2. Sampson(303): P brings action against D to cancel two leases executed by P’s husband. Claim of absolute ownership not an essential element. the lessor. occupying cotenant liable to out of possession cotenants where he refuses a demand of the other cotenants to be allowed into use and enjoyment of the land. The cotenant in possession owes a fiduciary duty to the other cotenants or 3. regardless of a claim of absolute ownership  In AP cases. to D as lessee of land owned by P and husband as JT.

Seek an accounting – entitled to half rent received 5. a lessee in possession of real property under a lease cannot dispute his landlord’s title nor can he hold adversely to him while holding under the lease. D already built boxing pavilion and could have a right to credit in the partition for value of improvement 3. if the tenant under the lease refuses him the right to enjoy his part of the estate 3. She could attempt to obtain an ouster – P tells D she has to use the pavilion at the exact moment of a match 4. If he refused. profits realized from using the property for business purposes. Cotenants can not own adversely to one another. either party can order and court will generally grant it 2. Recovering Costs  Concurrently owned property can yield a variety of benefits and expenditures to the cotenants o Benefits: rents realized from leases to third parties. Partition action against D – court may order in kind or by sale. value . if by sale. she could have claimed he was an ouster. Partition action against husband– in joint tenancy.the reasonable value of the land enjoyment of his share of the estate. thus lessee cannot obtain adverse possession  How could P have ended the lease(308)? 1. A lease to all of the joint property by one JT is not a nullity but is valid and supportable contract in so far as the interest of the lessor in the joint property is concerned  She could have appeared at the Pavilion and demand the lessee to allow her into possession. thus forcing him to pay half the fair rental value of the premises to her  She could demand and receive half the rents received by her husband from lessee if she acquiesced to the lease  There is no evidence that the P ever demanded that the D let her into possession of her part of the state nor is there anything to indicate that he is holding it adversely to her. What happens if husband dies? likely the lease would terminate at husband’s death v. Accounting for Benefits.

if in Swartzbaugh v.g. improvements Cotenant might seek to recoups some of all of the expenditures through a partition action. if impossible to do without jeopardizing the interest of the improver. maintenance and repairs. the accounting is usually based on actual receipts. Sampson the court had attempted to partition by sale . not FMV o Taxes.  realized by one or more of the cotenants in occupying the property as a residence o Expenditures: taxes and mortgage payments. mortgage payments. no action in any form for contribution will lie against the others. the improved portion awarded to the improving cotenant. an action for an accounting. o Repairs and improvements  A cotenant making or paying for necessary repairs has no affirmative right to contribution from the other cotenants absent an agreement  A cotenant has no right to contribution from other cotenants for expenditures for improvements  No credit for the cost of the improvements is given in an accounting or partition action  General RULE: interests of the improver are to be protected if his can be accomplished without detriment to the interests of the other cotenants o If land physically partitioned. at least up to the amount of the value of their share in the property  Cotenant paying more than his share receives a credit for the excess payments in an accounting or partition action  EXCEPTION: if the tenant who has paid taxes or interest has been in sole possession of the property. and other carrying charges  A cotenant paying more than his share generally has a right to contribution from other cotenants. or an action for contribution from other cotenants Accounting – equitable proceeding o Rents and profits  Cotenant who collects rents and other payments from third parties from the co-owned land must account to the cotenants for the amounts received (share with the cotenants)  Absent ouster. and the value of the use and enjoyment which he has had equals or exceeds such payments. payments to improver (owelty) may be due from noncontributing cotenants  E.

 If land partitioned by sale. ownership is given to the spouse who acquires the property o Continental system of community property – husband and wife are a marital partnership. a woman moved under her husband’s protection and becomes a feme covert o She ceased to be a legal person for the duration of the marriage o Husband and wife regarded as one (the one was the husband) o All personal property owned by the wife became the property of her husband  Except for clothes and ornaments (paraphernalia o Wife retained title to her real property. inheritance remains separately in both  Common law marital property system o Husband controls marital property but was liable for torts of the wife. the view of economic unit has more or less triumphed when spousal property is divided BUT less effect on division of property at the death of a spouse i. but husband had the right of all the wife’s lands acquired both before and after marriage (right known as jure uxoris). in the English system it remains separate but in the Continental system it is combined. The Common Law Marital Property System – (a) During Marriage (The Fiction that Husband and Wife are One) (pg. Marital Interests Medieval systems of marital property o English system – husband and wife have separate property. by gift is separate) o Whatever is earned in the course of the marriage is the community property of which both partners have an equal share o Upon divorce. 312) 1. alienable by the husband and reachable by his creditors  . Ownership was given to the spouse who acquires the property o Accepted in the large majority of American states (community property system still exists in 10 states) o Has been under pressure to reform itself so that the results resembles those reached under a community property system (triumphed with property separation after divorce and less division of property at the death of a spouse)  Community Property System(small handful of states) o May be more accurate representation of what people think the property system is/should be in the marriage o Whatever property you bring into marriage is still your separate property (inherited. proceeds distributed such to award to the improver the added value Improver bears both the “downside”(when improvements cost more than they yield) and “upside” risk of improvements o b. At marriage. share what they acquire equally  Fundamental difference between the two systems is the earnings acquired during the marriage.

Endo and wife convey property to their sons. without the consent of both spouses. Married Women’s Property Acts (first in Mississippi in 1835) o Removed the disabilities of coverture and gave a married woman control over all her property o Property was separate and immune from her husband’s debts o Wife gained control of all her earnings outside the home o Husband still head of household and wife had duty to support 3.  Rule: Tenancy by the entireties is a unilaterally indestructible right of survivorship. Endo becomes a debtor. Endo and wife owned property as tenants by the entirety. then wife dies. converted the tenancy in entirety into unity of equals and not unequals at common law  Court holds it is not unfair to the creditors of either spouse to hold that the estate by the entirety may not. be levied upon for the separate debts of either spouse. cannot make one for yourself (except in DE and Alaska)  Does it makes sense then that a tenancy by the entirety can protect from creditors? Maybe justified because it is providing for the family. and importantly for this case. 313): Mr. P bring civil action against D to set aside a conveyance of real property on the ground that the conveyances as to the Ps was fraudulent. a broad immunity from claims of separate creditors.  Court holds Hawaii joins those states that hold under the Married Women’s Property Acts the interest of a husband or a wife in an estate by the entireties is not subject to the claims of his or her individual creditors during the joint lives of the spouses  The Married Women’s Property Act of 1888 was not intended to abolish the tenancy by the entirety. nothing prevents the creditor from insisting upon the subjection property held in tenancy by the entirety as a condition to receiving credit  Spendthrift trust – protected even against beneficiary creditors. Property held by tenancy by the entirety not subject to creditors o Sawada v. an inability of one spouse to alienate his interest.o Wife had the duty of rendering services within the home 2. Endo(pg. . He got into an accident and had no liability insurance.

creditor owns the home free of wife’s interest.  . protection against alienation without her consent or any attempt to levy upon her husbands former interest.o Public Policy: interest in family solidarity retains some influence upon the institution of tenancy by the entirety Exceptions:  IRS is the one creditor who can always reach a tenancy in entirety  US v. wife owns house free of creditor’s interest  If wife dies first. Lincoln Ave(pg. 319): Case to determine whether or not the government is entitled to forfeiture of a piece of land owned in tenancy by the entirety where the husband has violated a criminal statute and the land can’t be forfeited if there is an innocent owner defense b/c wife was unaware of husband’s criminal acts  Court held the only forfeitable interest was the husband’s survivorship interest  Instead of forfeiting all or nothing. and the right to obtain in fee simple absolute if her husband predeceases her  In this way. the court essentially says that it want to uphold the purposes behind the statute as best s it can – the forfeiture for drug offense and the protection of innocent owners  NY Rule: a creditor can levy on one spouse’s interest in property and in a sense step into the shoes of the spouse  If creditor of husband. the court adopts the government’s proposal: it is entitled to the husband’s interest in the tenancy by the entireties but the wife may retain full and exclusive use of the property during her life. and husband dies first.