Defn of property; Justifications

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Concurrent Interests

Joint Tenancy

  • Unity of time – interest of both tenants has to be acquired at the same time

- avoided using strawperson (see unity of title)

  • Unity of title – both have to acquire title by the same will or deed; (can’t arise by intestacy)

  • gone or qualified in some places

  • But if not, if you want to create one from your land – have to transfer it to strawperson who transfers it back to you and the other person

  • Unity of interest – all must have equal, undivided shares

  • Modern law – interest can be in unequal fractional shares (that’s how govt takes JT’s too)

  • Unity of possession – each has an undivided interest in the property and can use all of it

BS that both parties can do whatever they want – pretends interests will never conflict

  • Right of survivorship (so you can’t will your interest to someone else)

  • Easy to sever but good for people who don’t want to spend the $ or time to make a will

  • Transferable – inter vivos without consent or knowledge of the other (creates a tenancy in common)

  • How to Sever:

  • convey the interest to another person (see transfer above)

  • when you sever, you don’t change the relationship of the remaining original tenants

  • Some places – you can break it by conveying your interest to yourself Potential for fraud (Riddle v. Harman) (others – you need a strawman)

  • A mortgage – doesn’t sever a JT (so if it’s just in one name and that person dies, the mortgage is gone)(Harms v. Sprague)

Tenancy in Common

  • Unity of possession

  • No right of survivorship (so you can will your rights to someone else)

  • If a cotenancy is created and fails the test for JT – it’s a tenancy in common

  • Ambiguous language – construed as T in C

  • Transferable inter vivos w/o other person’s consent or knowledge

When cotenants can’t agree:

- partition – physical division (preferred over partition by sale)

  • partition by sale – only done when 1. Partition is impracticable b/c of land’s features or 2. Interests of the owners would be better served by this (Delfino v. Vealencis) (some say do it when it’s the most economically favorable choice)

Who says what the best uses are? The tenant should be able to do whatever they want with the land.

- When parties want damages:

- each cotenant has the right to possess the whole

  • So have to show OUSTER - that the other tenant is adversely possessing (openly and notoriously behaving in a way inconsistent with being a cotenant rather than sole owner) – very difficult (ex’s clear-cutting, renting all of it and not sharing rent, changing locks and refusing to give the keys) (Spiller v. Macareth)

  • OR physically barring the other tenants

  • Seems like other possessor has to deny that the other tenant has ANY right at all (Spiller v. Macareth)

  • Constructive ouster – copossession is impracticable

  • tenant in possession has to pay ½ the rental value (or partition – extreme remedy)

When land is rented to a 3rd party:

  • accounting – cotenants split renting according to their % share (and deal with expenses separately)

  • OR just split the profits

  • (amount split = how much is actually collected)

  • If 1 cotenant rents their ½ - as long as other tenant can coexist with the renter – renting tenant can keep all the rent

  • Cotenant can seek partition if really unhappy with the arrangement

Maintenance Expenses:

  • all occupying tenants have to pay their share

- can use non-occupiers for contribution (see below)

  • not occupying:

  • if rental value > expenses – occupiers have to pay

  • if expenses> rental value – all have to pay


  • cotenant makes improvements w/o consent of the others  has to pay for them

  • IF rental value increases, improver can take all of the increase

  • Improver can demand a greater % of partition by sale $ (b/c of increased value by improvements) (not the cost of making the improvements)

Tenancy by the entirety

  • only married couples

  • (some states- if it’s ambiguous – assume it between married couples)

  • Interest can’t be divided w/o consent of both

  • Only ends if done together – divorce, death, transfer

  • neither can destroy the other’s right of survivorship

  • Can only sell – their right of survivorship – under common law

Creditor’s rights

  1. Common Law

  1. husband can convey the whole property

  2. BUT if husband died 1st – it still went to the wife (right of survivorship)

  3. In Mass. -= creditors can attach the property to cover his debts (but if he dies 1st – 100% still goes to her)

  1. Bank can attach the property of the debtor spouse and ½ the

right of survivorship (so if debtor live, they take 100%, if they die – bank takes 50%)

  1. Property can’t be attached unless it’s for the debt of both and neither spouse can alienate anything by themselves

(after it’s severed by death/divorce etc – then the remaining interest can be attached)

  1. The property can’t be touched by creditors during life – but one’s right of survivorship can be attached

Community property

  • 9 states

  • stuff during marriage, earnings, stuff from earnings, earnings on earnings or things bought

  • Not – one spouse’s cotenancy with another (with spouse’s consent)

  • Not stuff from before and not transmuted to comm.prop. by actions showing intent

  • Not earnings on separate property

  • Not assets from gift or inheritance

  • No tenancy by the entireties allowed

  • T in C or JT – either spouse can sever/transfer w/o consent

  • Divorce

  • comm.prop. – split 50-50, separate – kept

  • Creditors

  • Dift rules (about the community property)

  1. Can take it if it’s both spouse’ debt - always

  2. can take 100%

  3. can take 0%

  4. can take debtor’s ½ and ½ the other spouse’s (75%)

Non-community property

  1. Equitable distribution states

  1. Majority rule - All property held by either divided equitably (need, length of marr., economic contribution, alimony, child support)(some look at fault)

  1. Uniform dissolution of marriage act

  1. like comm.prop. – community property and assets by gift or will – split

  2. education is not like $ - no exchange value, not transferable – so not divided (In re marriage of Graham)

What about future earning potential?That looks like property

  1. When 1 spouse has supported the other – options

  1. 50/50 split of future earning potential

  2. make spouse make a similar contribution (education etc.)

  1. Increased earning potential:

  1. majority – isn’t marital property (In re marriage of Graham)

  2. minority – is marital property and can be divided (Elkus v. Elkus) b/c one party contributed to the marriage and deserves to be compensated; Hard to value; how do you figure out how much it’s worth? What if you decide to do something that doesn’t maximize it?

Domestic relationships (same sex)

  • Hawaii - they have rights of marriage; equitable dist. upon split


  • Can make a K

  • If not:

  • Contractual remedy – patterned behavior created a K

  • Restitution (in some places) – do equitable distribution


Community property states

  • survivor gets her ½ - deceased can leave other ½ to whoever

  • can be changed by K


  • forced share statute (have to give certain amt regardless of what kind of property)

  • can’t cut spouse out

  • A lot of places – if no will, spouse gets 100%

Unmarried – regular intestacy or will

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