Property (2005-2006)
V. CO-OWNERSHIP and MARITAL INTERESTS
- Common Law Concurrent Interests
- Tenancy in Common
- Separate and undivided interests
- Each interest is descendible and conveyable
- Joint Tenancy
- All joint tenants together = single owner
- Right of survivorship
- Four unities
- Time – Acquired or vest at the same time
- Title – Same instrument or joint adverse possession; never by intestate succession or other act of law
- Interest – Equal undivided shares and identical interests
- Possession – Each has right to possession of whole
- Tenancy by the Entirety
- Similar to joint tenancy
- Only between husband and wife
- May not be severed unilaterally
- Severance
- Any joint tenant can convert into tenancy in common by conveying interests to third party, which severs joint tenancy between the third party and cotenants. [Riddle v. Harmon – Joint tenant can sever joint tenancy by conveying to self as tenant in common.]
- Creditors cannot reach deceased joint tenant’s interest, which disappears at death. [Harms v. Sprague – Under lien theory of mortgage (American rule), mortgagee cannot reach mortgage after mortgagor’s death; even under title theory, mortgage temporary interest similar to a lien.]
- Surviving joint tenant can eject the lessee on the death of the lessor joint tenant.
- Joint Tenancy Bank Accounts - Surviving account holder has right of survivorship unless challengers can show the depositor intended otherwise. (Majority rule)
- Partition
- Available to tenants in common and joint tenants
- Partition in kind – Divide property into equal shares.
- Partition by sale
- CT rule – Where property can practicably be physically divided, partition in kind is preferable to partition by sale. [Delfino v. Valeancis]
- Rights of Co-owners
- Tenancy in common – Absent agreement to pay rent or ouster, a cotenant in possession not liable to other cotenants for value of use, occupation of property. [Spiller v. Mackereth]
- Toint Tenancy – Joint tenant’s lessee vested only with lessor joint tenant’s share of property. [Swartzbaugh v. Sampson]
- In general – Non-ousted cotenant only entitled to portion of rent received; ousted cotenant entitled to portion of fair market value of share.
- Tenancy in Common
- Common Law Marital Interests
- During marriage
- Creditors of one spouse cannot reach an estate by the entireties during the joint lives of the tenants. [Sawada v. Endo]
- Government may deprive convicted spouse of interest and take ownership if he survives innocent spouse. [1500 Lincoln Avenue]
- Termination by divorce
- Equal distribution (equal shares) vs. equitable distribution (account for other factors)
- Separate vs. community property (earnings or property acquired by earnings of either spouse during the marriage)
- In re Marriage of Graham – Educational degree (MBA) not property. (majority rule)
- Mahoney v. Mahoney – Compensation for financial contribution to professional degree can take the form of “reimbursement alimony”, but not for future value.
- Elkus v. Elkus (NY, minority) – Where one spouse’s contributions and efforts led to an increase in the value of the other’s career, the appreciation is marital property.
- Termination by death
- Common Law
- Dower - Widow takes 1/3 if issue survive, 1/2 otherwise
- Curtsey - Widower takes full title unless issue born
- Modern Law - Elective Share
- Common Law
- During marriage
- Community Property
- Earnings of each spouse owned equally.
- Separate property
- Acquired before marriage
- Acquired during marriage by gift, devise, or descent
- No tenancy by the entirety.
- No unilateral conveyances.
- No survivorship.
- "Stepped-up" tax basis after death of one spouse.
- Can be conveyed to third person only as an undivided whole.
- Migrating Couples
- Character of property determined by law of state of marital domicile at time of acquisition.
- Property doesn’t change character when moving between common law and community property states.
- Disposition of personal property governed by law of state of marital domicile at time of death.
- Disposition of land governed by law of state land is in.
- Surviving spouse in CP state (other than CA) may not take personal property of decedent spouse acquired in CL state.
- CA is quasi-CP and treats property as if couple had been domiciled in CA all along.
- Domestic Partners [Baker]
1 comment:
Thank you for posting your outline, very clear and concise.
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