Property IProperty IProfessor Donald J. KochanProfessor Donald J. Kochan

Classes 20-21Classes 20-21

Current ReadingsCurrent Readings

Common Law Concurrent InterestsCommon Law Concurrent Interests Pages 319-337Pages 319-337 Pages 338-358Pages 338-358

Tenancy Tenancy in Commonin Common

Joint TenancyJoint Tenancy Tenancy by Tenancy by

the Entiretythe Entirety

IntroductionIntroduction

Think again about preferences: Whether it be Think again about preferences: Whether it be pooling of resources, security, or desire -- pooling of resources, security, or desire -- concurrent estates help to satisfy preferences of concurrent estates help to satisfy preferences of grantors and granteesgrantors and grantees

Understand the difference between Understand the difference between consecutiveconsecutive rights of possession/ownership and rights of possession/ownership and concurrentconcurrent rights of possession/ownershiprights of possession/ownership

Be sure to understand Marital Interests are related Be sure to understand Marital Interests are related to concurrent interests, yet have some unique to concurrent interests, yet have some unique distinctions; and realize that community property distinctions; and realize that community property issues are focused on in an independent class.issues are focused on in an independent class.

Tenancy in CommonTenancy in Common Created by deed, will or opertaion of law (i.e. interpretation)Created by deed, will or opertaion of law (i.e. interpretation)

Presumptively favored in the face of ambiguityPresumptively favored in the face of ambiguity

Only need one unity to make valid – possessionOnly need one unity to make valid – possession

Each tenant owns undivided fractional partEach tenant owns undivided fractional part

Interest is transferableInterest is transferable

Destructible by partition or merger; why and how?Destructible by partition or merger; why and how?

Ouster/ Causes of Action Against Tenant in CommonOuster/ Causes of Action Against Tenant in Common

Good Faith/Constructive Trust IssuesGood Faith/Constructive Trust Issues

No right of survivorshipNo right of survivorship

Joint TenancyJoint Tenancy Created by deed or will, not descent.Created by deed or will, not descent.

““O to A and B and their heirs”O to A and B and their heirs”

Strict interpretation requires 4 unities:Strict interpretation requires 4 unities: time, time, title, title, interest, and interest, and possessionpossession

A Joint Tenant owns an UNDIVIDED interest in the WHOLE; nothing A Joint Tenant owns an UNDIVIDED interest in the WHOLE; nothing fractionalfractional

Right of Survivorship: So, traditionally, if A dies – B takes everything; Right of Survivorship: So, traditionally, if A dies – B takes everything; nothing passes to A’s heirsnothing passes to A’s heirs

How can a joint tenancy be severed inter vivos?How can a joint tenancy be severed inter vivos?

Ambiguity in instrument typically NOW resolved in favor of a tenancy in Ambiguity in instrument typically NOW resolved in favor of a tenancy in common, given public policy on alienability.common, given public policy on alienability.

Tenancy by the EntiretyTenancy by the Entirety Unity of Husband and WifeUnity of Husband and Wife

Consider how that matters depending on how we define marriageConsider how that matters depending on how we define marriage

FiveFive Unities: Unities: Time;Time; Title;Title; Interest;Interest; Posession;Posession; PersonPerson

First four are same as joint tenancy, fifth is person of marriage First four are same as joint tenancy, fifth is person of marriage at the time of at the time of conveyanceconveyance

Neither spouse may unilaterally convey away, destroy, or partitionNeither spouse may unilaterally convey away, destroy, or partition

Created only by deed or will, not descentCreated only by deed or will, not descent

Creditors – traditionally cannot reach the property for the obligations of only one Creditors – traditionally cannot reach the property for the obligations of only one spouse. . .spouse. . .

Divorce – generally destroys the estate and converts to tenants in common or a joint Divorce – generally destroys the estate and converts to tenants in common or a joint tenancy because it destroys the 5tenancy because it destroys the 5thth unity of person unity of person

Severance IssuesSeverance Issues

Concurrent interests undoubtedly Concurrent interests undoubtedly handcuff one or more of the parties. handcuff one or more of the parties. Whether, when, and how we should Whether, when, and how we should allow them to sever and break free allow them to sever and break free

becomes a struggle for the law. And becomes a struggle for the law. And how much is owed to the original how much is owed to the original

grantor’s intent?grantor’s intent?

Riddle v. HarmonRiddle v. Harmon Focus on the four unitiesFocus on the four unities Focus on destructability of the unitiesFocus on destructability of the unities Focus on CreationFocus on Creation Focus on Straw Men – intermediary devicesFocus on Straw Men – intermediary devices What is “two-to-transfer”?What is “two-to-transfer”? Should “ancient vestiges of that ceremony Should “ancient vestiges of that ceremony

give way to modern conveyanding realities”?give way to modern conveyanding realities”? Termination of Joint Tenancies Issues – Termination of Joint Tenancies Issues –

unilateral severance issuesunilateral severance issues Should the court deem some rules “archaic”? Should the court deem some rules “archaic”?

Or, do they have independent value?Or, do they have independent value?

Harms v. SpragueHarms v. Sprague What is quiet title? You should know by What is quiet title? You should know by

now.now. What is a declaratory judgment? You What is a declaratory judgment? You

should know by now.should know by now. What is a mortgage?What is a mortgage? What is a lien?What is a lien? What is a security on property?What is a security on property? What is the common law theory of title re What is the common law theory of title re

mortgages?mortgages? ““[N]ot as the successor of the deceased” [N]ot as the successor of the deceased”

-- Explain why this lies at the crux of the -- Explain why this lies at the crux of the decision and the crux of a joint tenancy.decision and the crux of a joint tenancy.

Relations AmongRelations AmongConcurrent OwnersConcurrent Owners

PartitionPartitionTalk about partitioning:Talk about partitioning: October 2008 Weekend Update: October 2008 Weekend Update:

“Cambodian couple split house in half to avoid divorce court”, “Cambodian couple split house in half to avoid divorce court”, http://www.usatoday.com/news/offbeat/2008-10-10-cambodia-divorce_N.htm

Benefits and Burdens of CoownershipBenefits and Burdens of Coownership

Delfino v. ValencisDelfino v. Valencis Know the difference between partition in kind and partition by Know the difference between partition in kind and partition by

sale, and the conditions that satisfy an equitable AND/OR sale, and the conditions that satisfy an equitable AND/OR practicable reason for choosing eitherpracticable reason for choosing either

What are the “best interests of the parties” and why doe the court What are the “best interests of the parties” and why doe the court consider them, and how does the court evaluate them?consider them, and how does the court evaluate them?

Consider how the court handles alternative uses and ownership of Consider how the court handles alternative uses and ownership of property.property.

Mark your notes to remember this case when we start discussing Mark your notes to remember this case when we start discussing regulation next semester.regulation next semester.

Be sure to read the Notes following the case.Be sure to read the Notes following the case.

Rubbish hauling – always interesting . . . Rubbish hauling – always interesting . . .

Benefits and Burdens of Benefits and Burdens of Co-OwnershipCo-Ownership

DutiesDuties LiabilitiesLiabilities

Contractual Obligations v. Property Contractual Obligations v. Property ObligationsObligations

Affirmative and NegativeAffirmative and Negative Differential in RemediesDifferential in Remedies

Rights & Responsibilities related to:Rights & Responsibilities related to: UseUse

MaintenanceMaintenance ImprovementsImprovements

Spiller v. MackerethSpiller v. Mackereth

Definition of Cotenancy/Exclusive Definition of Cotenancy/Exclusive PossessionPossession

Rental Liabilities/Continued OccupancyRental Liabilities/Continued Occupancy

Purposes/Terms of UsePurposes/Terms of Use

Adverse PossessionAdverse Possession

Necessity of OusterNecessity of Ouster

Swartzbaugh v. SampsonSwartzbaugh v. Sampson Joint TenancyJoint Tenancy

Right of SurvivorshipRight of Survivorship

Severance issues esp. re destruction of the Severance issues esp. re destruction of the necessary unities, here particularly possessionnecessary unities, here particularly possession

Adverse possession issuesAdverse possession issues

Lease issues as relevant to both the destruction Lease issues as relevant to both the destruction of unities and the establishment of adverse of unities and the establishment of adverse

possessionpossession

Introduction to Marital InterestsIntroduction to Marital Interests

““Wife Wins in Canine Custody Battle”Wife Wins in Canine Custody Battle”

07 Oct 200907 Oct 2009

By Larry Yellen, FOX Chicago NewsBy Larry Yellen, FOX Chicago News Article with Video:Article with Video:

http://www.myfoxchicago.com/dpp/news/offbeat/dog_divorce

Concluding ThoughtsConcluding Thoughts

Be sure you understand the reasons people Be sure you understand the reasons people might prefer to grant or to have concurrent might prefer to grant or to have concurrent

estates, and when they might not.estates, and when they might not.

Think about it – it involves property Think about it – it involves property implications, tort liability implications, implications, tort liability implications,

contract implications, tax responsibility contract implications, tax responsibility implications, family law implications, real implications, family law implications, real

estate and trust implications, probate estate and trust implications, probate implications, etc.implications, etc.

Like I have said, you cannot know those Like I have said, you cannot know those subjects if you do not know property.subjects if you do not know property.