Tuesday, December 13, 2005

Outline - Property - V - Co-ownership and Marital Interests

Property (2005-2006)


  1. Common Law Concurrent Interests
    1. Tenancy in Common
      1. Separate and undivided interests
      2. Each interest is descendible and conveyable
    2. Joint Tenancy
      1. All joint tenants together = single owner
      2. Right of survivorship
      3. Four unities
        1. Time – Acquired or vest at the same time
        2. Title – Same instrument or joint adverse possession; never by intestate succession or other act of law
        3. Interest – Equal undivided shares and identical interests
        4. Possession – Each has right to possession of whole
    3. Tenancy by the Entirety
      1. Similar to joint tenancy
      2. Only between husband and wife
      3. May not be severed unilaterally
    4. Severance
      1. 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.]
      2. 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.]
      3. Surviving joint tenant can eject the lessee on the death of the lessor joint tenant.
    5. Joint Tenancy Bank Accounts - Surviving account holder has right of survivorship unless challengers can show the depositor intended otherwise. (Majority rule)
    6. Partition
      1. Available to tenants in common and joint tenants
      2. Partition in kind – Divide property into equal shares.
      3. Partition by sale
      4. CT rule – Where property can practicably be physically divided, partition in kind is preferable to partition by sale. [Delfino v. Valeancis]
    7. Rights of Co-owners
      1. 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]
      2. Toint Tenancy – Joint tenant’s lessee vested only with lessor joint tenant’s share of property. [Swartzbaugh v. Sampson]
      3. In general – Non-ousted cotenant only entitled to portion of rent received; ousted cotenant entitled to portion of fair market value of share.
  2. Common Law Marital Interests
    1. During marriage
      1. Creditors of one spouse cannot reach an estate by the entireties during the joint lives of the tenants. [Sawada v. Endo]
      2. Government may deprive convicted spouse of interest and take ownership if he survives innocent spouse. [1500 Lincoln Avenue]
    2. Termination by divorce
      1. Equal distribution (equal shares) vs. equitable distribution (account for other factors)
      2. Separate vs. community property (earnings or property acquired by earnings of either spouse during the marriage)
      3. In re Marriage of Graham – Educational degree (MBA) not property. (majority rule)
      4. Mahoney v. Mahoney – Compensation for financial contribution to professional degree can take the form of “reimbursement alimony”, but not for future value.
      5. 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.
    3. Termination by death
      1. Common Law
        1. Dower - Widow takes 1/3 if issue survive, 1/2 otherwise
        2. Curtsey - Widower takes full title unless issue born
      2. Modern Law - Elective Share
  3. Community Property
    1. Earnings of each spouse owned equally.
    2. Separate property
      1. Acquired before marriage
      2. Acquired during marriage by gift, devise, or descent
    3. No tenancy by the entirety.
    4. No unilateral conveyances.
    5. No survivorship.
    6. "Stepped-up" tax basis after death of one spouse.
    7. Can be conveyed to third person only as an undivided whole.
  4. Migrating Couples
    1. Character of property determined by law of state of marital domicile at time of acquisition.
    2. Property doesn’t change character when moving between common law and community property states.
    3. Disposition of personal property governed by law of state of marital domicile at time of death.
    4. Disposition of land governed by law of state land is in.
    5. Surviving spouse in CP state (other than CA) may not take personal property of decedent spouse acquired in CL state.
    6. CA is quasi-CP and treats property as if couple had been domiciled in CA all along.
  5. Domestic Partners [Baker]

1 comment:

Ali said...

Thank you for posting your outline, very clear and concise.