Gilbert Book

Front 1

3 types of concurrent ownership

Back 1

1. Tenancy in common
2. Joint tenancy
3. Tenancy by entirety

Front 2

Tenancy in common

Back 2

Two or more persons own the property with NO right of survivorship between them; when one tenant in common dies, her interest passes to her heirs or devisees

Front 3

Joint Tenancy

Back 3

Two or more persons own the property with a right of survivorship; when one joint tenant dies, the survivor(s) take all. Requires 4 unities (time, title, interest, possession)

Front 4

Tenancy by entirety

Back 4

exists only between husband and wife, with a right of survivorship that cannot be severed without consent of both spouses.

Front 5

Tenancy in common

Back 5

Each tenant is the owner of a separation distinct she of the property, which ha not been divided among the co-tenants. Each owner has a separate undivided interest in the whole.

Front 6

TIC- right to possession

Back 6

Each co-tenant has the right to possess and enjoy the entire property. One tenant can go into possession of the whole unless another co-tenant objects.

Front 7

TIC- alienability

Back 7

A tenant in common can sell, give, devise, or otherwise dispose of her undivided share in the same manner as if she were the sole owner of the property.

Front 8

TIC- modern law

Back 8

Whenever a conveyance is made to two or more persons who are not husband and wife, they are presumed t take as tenants in common, not as joint tenants.

A grant must expressly state a joint tenancy is intended, usually done by the mention of the right of survivorship.

Front 9

Joint tenancy

Back 9

The right of survivorship is the key distinction. On the death of each tenant, the property belongs to the surviving joint tenants.

Front 10

Joint tenant devise or conveyance

Back 10

JT can be crated by deed or will, or by a joint adverse possession. JT does NOT arise where persons inherit property by intestate succession. Heirs always take as TIC

Front 11

JT- real or personal property

Back 11

A JT can be created in either real or personal property

Front 12

JT- 4 unities

Back 12

Common law requires the interest to be equal in all respects. They must take their interests (i) at the same time, (ii) by the same instrument, (iii) with identical interests, and (iv) with an equal right to possess the whole property.

Front 13

Unity of time

Back 13

The interest of each joint tenant must vest at the same time.

Front 14

Unity of title

Back 14

All joint tenants must acquire title by the same deed or will, or by joint adverse possession. A conveyance by H "to H and W as joint tenants" violates the unities of time and title. Common law rule is that one person cannot convey to himself. Must use a straw man.

Whenever you see on an exam where the grantor is trying to create a JT in himself and another person, discuss the unity of title and time problems.

Front 15

Unity of interest

Back 15

JT's hold but one estate as a single entity, so the interest of each joint tenant must be equal in an estate of one duration. It is not possible, e.g., for O to create a JT by conveying "one-half to A and his heirs, and one-half to B for life, A and B to hold as JT's."

Front 16

JT equal shares

Back 16

the shares of each JT must be equal. i.e., one tenant cannot have a 1/3 share and the other a 2/3 share.

Front 17

Unity of possession

Back 17

Each joint tenant must have the right to possession as a whole. After creation, JT's can agree that one JT has the exclusive right to possession. Such an agreement does not break the unity of possession.

Front 18

Trustes and executors

Back 18

Presumption of TIC does not apply. It is held that they have a JT

Front 19

Severance of a joint tenancy

Back 19

Any joint tenant can at any time destroy the right of survivorship by severing the joint tenancy.

Front 20

Contract to convey

Back 20

a contract by one joint tenant to convey her interests in the property, which is specifically enforceable in equity, may sever the joint tenancy.

Front 21

Conveyance to self

Back 21

Recent cases have permitted a joint tenant to unilaterally sever the tenancy by conveying her interest to herself without using an intermediary.

Front 22

Title theory

Back 22

At common law, a mortgage had the effect of conveying the legal title to the mortgage; the mortgagor kept an equity of redemption entitling the mortgagor to get legal title back on payment of the mortgage. Because a mortgage by a JT conveys the legal title of the JT, the mortgage destroys the unity of interest and severs the JT

Front 23

Lien theory states

Back 23

Lien theory states hold that the mortgagee does not have legal title, but rather a security interest called a lien. Legal title remains with the mortgagor. This does not sever the JT, but the states differ in whether the surviving JT takes 1/2 subject to the mortgage if the sent is not paid off before the debtor JT dies.

Front 24

Common law- leases sever Jt's

Back 24

Lessor JT has only a reversion and other JT has a fee simple. Bc the interests were different, the Jt was severed.

Front 25

Modern view- lease does not sever JT

Back 25

no severance and surviving jt takes the whole, but the cases are split as to whether the surviving JT takes 1/2 subject to the lease.

Front 26

Exclusive possession

Back 26

JT's can agree that one tenant has the right to exclusive possession. Such an agreement does not sever the JT

Front 27

JT

Back 27

avoids probate

Front 28

Joint bank accts

Back 28

either party on the acct can withdraw the amount deposited and the survivor takes whatever sum is remaining in the acct when the other JT dies.

Front 29

convenience act

Back 29

A can lawfully write checks to pay bills, but A has no right of survivorship

Front 30

lifetime rights

Back 30

the majority hold that the money in the acct belongs to the parties in proportion to their contributions and is thus reached by their creditors in that proportion as eel

Front 31

Tenancy by entirety

Back 31

a form of concurrent ownership that can be created only between husband and wife holding as one person. the 5th unity of marriage is required, and surviving spouse has right of survivorship.

Front 32

Severance of TbyE

Back 32

severance by one person is not possible

Front 33

conveyance to unmarried persons

Back 33

most hold that it creates a JT since that is closer to the grantor's intent than a TIC

Front 34

Married women's property act

Back 34

1. give both H and W equal rights to possession during the marriage, 2. forbid H and W acting alone to convey his or her interests, therefore creditor of one spouse cannot reach the property because neither the H or W acting alone can convey his or her interest,

Front 35

Creditors right

Back 35

Each spouse can voluntarily convey his or her interest, so a creditor of an H can seize and sell his interest- same thing w W

Front 36

Forfeiture under drug laws

Back 36

federal drug laws provide for forfeiture to the govt of any property used in the sale of illegal drugs. Any interest in the property of an innocent owner is exempt from forfeiture.

Front 37

Innocent owner defense

Back 37

the property used in dealing drugs is forfeited except to the extent the owner did not know of or consent to the illegal activity.

Front 38

Divorce

Back 38

Most states hold that the T by E is converted into a TIC in that souses do not want the right of survivorship after divorce.

Front 39

T by E in personal property

Back 39

Most states allow bc the basis for the common law prohiibtion was destroyed by the Married Women's property act

Front 40

Possession of one co-tenant

Back 40

each co-tenant is equally entitled to the possession and enjoyment of the entire estate and no co-tenant may exclude another co-tenant from any part of the property. A private agreement regarding possession does not sever the unity nor does it sever a JT

Front 41

Co-tenant out od possession

Back 41

If B is not excluded (ousted) by A, A is entitled to use and occupy every part of the property without paying any amount to B. B cannot recover a share of the rental value unless B has been ousted by A.

Front 42

Public policy

Back 42

promotes the productive use of property. rewards the co-tenant who goes into possession and uses the property

Front 43

Carrying charge

Back 43

Because A, in possession, does not have to pay rent to B, it is deemed fair that A must bear the ordinary expenses of upkeep (taxes, repair, mortgage interest). If taxes and mortgage interest exceed the fair rental value of the property, A has a right of contribution from other co-tenants.

Front 44

Ouster

Back 44

If one co-tenant ousts another co-tenant, she must pay the ousted co-tenant his share of the reasonable rental value of the property.

Front 45

Ouster- def

Back 45

an act by one co-tenant that deprives another co-tenant of his right to possession.

Front 46

Ouster remedies

Back 46

ousted ct can bring suit to collect his share of the reasonable rental value or a suit to partition the property

Front 47

carrying charges- minority

Back 47

the occupying tenant is accountable for her share of the net reasonable rental value after deducting expenses of upkeep

Front 48

Accounting for rents from 3rd parties

Back 48

any rents collected by a co-tenant from a third party must be shared equally the other co-tenants if the income exceeds the collecting co-teants;s proportionate share

Front 49

Minerals

Back 49

if a co-tenant operates mines or oil wells, she is not entitled to take her fair share bc of the difficulty in estimating the amount and value of the minerals. instead, the co-tenant must pay a proportionate part of the net amount received for the extracted minerals to her co-tenants.

Front 50

Timber

Back 50

a co-tenant can cut her fair share of timber without being liable to her co-tenants for its value. If she cuts more, she must account

Front 51

Taxes

Back 51

each ct has the duty to pay his or her share of taxes to protect the property from a tax foreclosure sale. If one ct pays more than her share, she is entitled to reimbursement from others

Front 52

Exception to taxes

Back 52

if one ct is in sole possession she has the duty to pay the taxes and mortgage interest up to the amount of reasonable rental value of the property.

Front 53

Rent received from 3rd party

Back 53

if the ct receives rent from a 3rd person, she must account to her ct for the net rents received after debuting taxes and other carrying charges.

Front 54

Interest on a mortgage

Back 54

Treated the same way as taxes. a ct paying interest on the mortgage can compel contribution from non-paying co-tenants who are personally liable on the mortgage. If the nonpaying ct is not personally liable on the mortgage, the paying ct can foreclose a lien on the other's interest

Front 55

Payment on principal

Back 55

if ct pays off a mortgage, he or she has a lien on the property, and if the other ct does not pay his or her share when its due, the ct can foreclose the lien.

Front 56

Repairs

Back 56

common law- ct cannot be reimbursed for repairs, but can deduct fro rent received from a third party, some jurisdictions have changed and permit contribution if the repairs were necessary and if notice was given to other ct's

Front 57

Improvements

Back 57

improving ct cannot compel contribution from other ct's. However, the general rule is that the improver should get the value of the improvements. no added value=no reimbursement

Front 58

Adverse possession

Back 58

a ct may adversely possess against another tenant and if the ap continues for the statutory period, it will ripen title into the adverse possessor. clear and unequivocal notice of repudiation of the common title must be given to other ct's

Front 59

Partition

Back 59

an equitable proceeding in which the court either physically divides or sells common property, adjusts all claims of the parties, and separates them. Not available to T by E bc neither spouse can destroy the right of survivorship in the other spouse.

Front 60

Partition in kind

Back 60

physically dividing land. if tracts of land are not equal in value, the court will order one party to make payment (an owelty), to the other tenant

Front 61

Partition by sale

Back 61

if physical partition is not feasible or in the best interests of all parties, the court will order the property sold and proceeds divided equally among co-tenants.

Front 62

Agreement not to partition

Back 62

can be valid as not be to a restraint on alienation if it is not harsh or oppressive.

Front 63

Professional degrees

Back 63

Some courts have held that that the earning power from a professional degree is not "property" and therefore not divisible in a divorce.- Graham

Some courts hold that alimony is the appropriate remedy to give. When the cost of her investment is returned to her, she can make a new investment.- In re Marriage of Francis

NY has held that the earning power increased during the marriage by acquiring a professional degree or celebrity status is property subject to equitable division.- Elkus

Front 64

Goodwill

Back 64

Most courts hold that good will acquired in the practice of law or medicine is property to be taken into account on equitable division. i.e. if W is a lawyer, H is entitled to a share of the value of the wife's practice, including accounts receivable and goodwill that will produce further business.

Front 65

Dower

Back 65

a life estate in 1/3 of each parcel of qualifying land. At common law, W has dower in all freehold land of which her husband is seised during marriage and which is inheritable by issue

Front 66

Dower

Back 66

does not attach to land in which H only has a life estate, nor does it attach to land H owns w another as a joint tenant. the land must be inheritable.

Front 67

inchoate

Back 67

the W has in interest that is not yet, but may become possessory when the husband dies. Dower is inchoate. Once dower attaches, W prevails over any subsequent purchasers of the property and over any attaching creditors

Front 68

Rule of dower

Back 68

once inchoate dower has attached, W cannot lose dower unless she consents or the couple is divorced.

Front 69

Curtesy

Back 69

If issue were born to the marriage, the husband received a life estate in ALL of his wife's land, not just 1/3

Front 70

Elective share

Back 70

the surviving spouse is given an elective share of the decedent's property owned at death. The share is usually 1/2 or 1/3 depending on the length of the marriage

Front 71

Antenuptial transfers

Back 71

secret transfers made before marriage, when marriage is contemplated, may be deemed fraudulent as to the surviving spouse. If deemed fraudulent, such transfers are subject to the surviving spouse's elective share. Fraudulent intent is ordinarily presumed when the gift is made without the knowledge of the prospective spouse.

Front 72

Community property states

Back 72

AZ, CA, ID, LA, NV, NM TX, & WA

Front 73

Community property

Back 73

Earnings of either spouse during marriage and property acquired through earnings.

Front 74

Separate property

Back 74

property owned by either spouse before marriage or acquired after marriage by gift, descent, or devise

Front 75

Income from community property

Back 75

once property is characterized as community property, all income and proceeds of sale of the property are community property. if new assets are purchased w comm funds, the new assets are cp. One spouse cannot, without the other spouse's consent change cp to sp.

Front 76

Income from sp

Back 76

ID, LA and TX hold that income from sp is cp. The other states hold that it retains its separate character

Front 77

commingling

Back 77

is sp and cp have been comingled as to not be able to ascertain which is which, it will presumed to be cp as a whole

Front 78

Community labor used on separate property

Back 78

The court will look at whether the profits were chiefly due to the spouse's personal efforts (cp), the court will allocate a fair return as sp and the rest to cp.

Front 79

conveyance of a share

Back 79

neither spouse acting alone can convey his or her share of cp, except to the other spouse. By agreement the spouses can convert cp into sp and vice versa (trans...)

Front 80

Real property

Back 80

usually land held in cp can only be sold when both H and W consent

Front 81

Business interest

Back 81

A spouse who is managing a business that is community property has the sole mgmt control of the business.

Front 82

Rights at dissolution of marriage

Back 82

Upon divorce, cp is usually divided equally. when one spouse dies, the decedent has the right to transfer his or her 1/2 of the cp by will to anyone

Front 83

Uniform Marita property Act

Back 83

all property acquired during marriage other than by gift or inheritance is marital property

Front 84

Migrating couples

Back 84

if the couple is domiciled in an sp state, the earnings of each are the sp of each. If domiciled in cp state, the earnings of each are cp. Once property rights are determined, they do not change if the couple changes domicile. cp acquired in a cp state remains cp if the couple moves to an sp state and sp acquired in an sp state remains sp if the couple move to a cp state.

Front 85

Quasi cp statutes

Back 85

when an older couple moves from an sp state to a cp state, the elective share protect is lost. The statutes in CA and TX treat all property earned in a sp state that would have been treated as cp is the couple had been domiciled in a cp state.

Front 86

choice of law

Back 86

when a couple is involved in a transaction, part that takes place in a sp state and part that takes place in a cp state, the court uses the law of the state having the most significant relationship w the parties.

Front 87

Common law marriage

Back 87

where common law marriage is recognized, an unmarried man and woman who agree to be married, hold themselves out to be married, and conduct their affairs as a married couple are lawfully married.

Front 88

Express contract upon dissolution of common law

Back 88

usually enforced in most states

Front 89

implied contract

Back 89

can sometimes be implied by the conduct of the parties. if an implied contract is found, it is enforceable.

Front 90

Rent controlled apt

Back 90

in NY, rent-controlled apts on the tenant's death can pass to a member of the deceased tenant's "family", which includes a same sex partner

Front 91

Discrimination statutes

Back 91

a number of states have passed statutes forbidding discrimination in housing of employment bc of sexual orientation. Some cities have passed ordinances giving to same sex partners limited rights.