Property-2

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III. Tenancy in Common – T/C IV. Tenancy by the Entirety V. Relations among concurrent owners –

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Define: Tenancy in Common – T/C – \\\ what about passing it on? What about shares division?

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III. Tenancy in Common – T/C – estate shared by two or more people in the same property at the same time. Each T has a separate individual interest, w/no right of survivorship. Owner of a separate and distinct share of B/A. A. Nature of T/C – One T can will his interest away . If dies intestate, will pass by succession 1. Shares may be unequal but there is a rebuttable presumption of equal shares

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Define: Tenancy by the Entirety – \\\ what unities are required? Destructiblity--minority/majority?

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IV. Tenancy by the Entirety – only possible between a husband and wife. Hold as one person. A. 5 unities – need the original 4 (TTIP) plus a fifth (marriage). B. Indestructible – there can be no unilateral severance. Upon divorce: a) Majority – becomes T/C b) Minority – becomes JTWROS

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Describe basics of: Relations among concurrent owners – \\ recriprocality? right to use property? how to rid of property?

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V. Relations among concurrent owners – A. Basics 1. Rights of use are reciprocal 2. Each has the right to use the entire property, consistent w/the right of the other(s) to do the same 3. Practical reality co-tenants face is “get along or get rid of the property”. They can get rid of the property by: a) Selling it and splitting proceeds b) Divide premises and exchange deeds c) If they can't get agree, they can partition the property w/help of court. 4. Better to do it w/o the court a) Partition makes price decrease – just to get rid of it

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Define: Partition - \\ what kind of action is it?

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B. Partition - the right to end the co-tenant relationship judicially. Partition is an equitable action and this gives the court a lot of power. Court decides the type of partition

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Define: Partition in kind – \\ when do courts favor this?

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1. Partition in kind – physical division of B/A a) Favored by courts when it is feasible. Modern courts think that sale is fairer.

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Define: Partition by sale- sale w/division of proceeds \\ what are most partitions? What did Delfino say about this? What did Grey say about this?

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2. Partition by sale- sale w/division of proceeds a) Most partitions are partition by sale b) Delfino v. Vealencis – 2 ’s and 1 own B/A. s want to develop property,  owns 1/3 of property and live/operates garbage business on property. Appellate court reverses decision of trial court for partition by sale and decrees partition in kind. (1) Unlike this case, most courts require a partition by sale when the facts show that a sale would generate more financial value than a partition in kind.  wins here because she shows herself to be the “American Dream” and her business would die and she would have nowhere to live. s should have said  was holding up the American dream of others by keeping a garbage business on developable property 3. Example- Gray v. Crotts: Lot divided into 4 parcels, one co-tenant argues he should get the parcel adjacent to his home. Court orders them to draw lots. Why is this OK? a) Because homeowner has same chance of drawing that parcel as anyone. The value in the lot should not be given to him for free. The person who gets it can sell it to him for the added value. (1) This is why modern courts like partition by sale. Sell lot and divide it 4 ways. Everyone has equal share.

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Agreements not to partition- \\\ when are parties free to do this? Why may some courts not recognize this?

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4. Agreements not to partition- parties are free to do this, but some courts may not recognize it because it may look like an unreasonable restraint on alienation (right to sell)

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Hypo: Court will not direct sale where result will be unfair ------ a) Two siblings want dad’s chair (T/C) \\\ what can the court do?

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5. Court will not direct sale where result will be unfair a) Two siblings want dad’s chair (T/C) (1) Court could order them to switch every day – he can go off list of co-tenancies because of the court’s strong equitable power. (2) Court ordered sale would not be OK because the market for the chair is limited and the one w/more money would win

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Sharing the benefits and burdens of co-ownership \\\ What about possession by one tenant? Is there a clear set of rules to sort out unhappy co-owners?

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C. Sharing the benefits and burdens of co-ownership 1. Possession by one tenant is OK, but each co-tenant has the right to occupy the entire premises subject only to the similar right of other co-tenants. 2. No clear set of rules to sort out unhappy co-owners. Unclear because it is an area of compelling equities (widows, orphans). Compelling equities sully law.

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Define: Ouster

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D. Ouster – when occupying co-tenant refuses a demand of the other cotenants to be allowed equal use and enjoyment of the land.

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How did Spiller v. Mackereth- co-tenant  takes possession of building and puts locks on it.  co-tenant writes letter demanding ½ rent or vacate ½ building. Illustrate Ouster?

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D. Ouster – when occupying co-tenant refuses a demand of the other cotenants to be allowed equal use and enjoyment of the land. 1. Spiller v. Mackereth- co-tenant  takes possession of building and puts locks on it.  co-tenant writes letter demanding ½ rent or vacate ½ building. Court finds for  - there was no ouster a)  did not deny entrance into the building. ’s lawyer did not demand equal use and enjoyment of the property in the letter. Locks were only there to protect his stuff, not to keep  out. 2. Majority – a co-tenant who uses the whole property does not have to pay rent unless there is an ouster (need to write letter demanding “equal use and enjoyment of the property” and then get the demand denied by the occupying tenant).