Ownership-a system of laws governing the relationship among people with respect to resources. A social construct



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Time--all joint tenants must acquire ownership at the same time

Not in California (see 332 at n.4)



Title--all joint tenants must acquire ownership by the same instrument/joint adverse possession

Interest--each joint tenant must own an identical fictional share of property

This requirement has been ignored by recent courts (330)



Possession--each joint tenant must have equal right to use the property

SOME JURISDICTIONS have abolished the required of the four unities (326)

Any one joint tenant can unilaterily convert a joint tenancy into a tenancy in common by conveying his interest to a third party.

If one joint tenant kills another, estate is converted to tenancy in common (336)--See, also, Uniform Simultaneous Death Act at 336

English common law favored joint tenancies over tenancies in common (327)

Common law preference for joint tenancy has been abolished in all states. Most states now require express declaration of an intent to create a joint tenancy (328).

"O to A and B as joint tenants and not as tennants in common"; "O to A and B as joint tenants with the right of survivorship"

Creditors can seize and sell a joint tenant's interest in property, leaving behind a tenancy in common. If the creditor waits until after the joint tenant dies, the joint tenancy become untouchable (329)

Tenancy in the entirety

Only a marital estate

Surviving tenant has the right of survivorship

One tenant cannot unilateraly abrogate the tenancy by conveyance to a third party (327)--serves to protect spouses against unilateral severance

Either both must do so at the same time; or

They must get a divorce



Riddle v. Harmon--(1980 at 330)--no "strawman" is necessary to convert a joint tenancy into a tenancy in common

Lower transactions costs

No notice to the other tenant may be unfair

If parties wanted an indestructible interest, they could have created

Joint life estate, with contingent remainder in fee simple to the survivor

Tenancy in common in fee simple, with an executory interest in the survivor ***



Harms v. Sprague (1984 at 336)

Mortgage does not sever a joint tenancy because it is merely a lien on the person's property

Some cases have held that a mortgage constitutes a conveyance of title, and therefore converts the joint tenancy into a tenancy in common

Bank did not forclose during person's life; when the person died, his interest in the property was destroyed. Bank no longer had the power to forclose.

POLICY

Bank could have found out property was a joint tenancy and could have gotten the other tenant to sign (similar to Broadway National Bank)



Protects unknowing party

Joint tenancy bank accounts (342)--protects banks from allowing a survivor to draw all the funds where the intent between the parties was a convenience account--simply to allow one party to pay the bills of another (think about the case in procedure***)

Partition--Equitable action available to tenants in common or to joint tenants to split up the subject property

Delfino v. Vealencis (1980 at 346)--garbage man and condo developer

Partition in kind (physical partition of property) is favored over partition by sale (forced sale of property followed by distribution of proceeds)--partition by sale is a doctrine of last resort: (347-

348)


Physcial attributes of the land are such that partition in kind is impracticable

Interest of owners would be better promoted by partition by sale

MODERN TREND is to partition by sale (352)

Partition in kind may not be efficient because one party may hold out in negotiations with other party or outside developer (Bi-lateral monopoly)

Partition in kind protect personhood investment in property

Partition by sale may not be fair because displaced party can only get what court determines is fair maket value (Contra Personhood theory of property)

D's property interest in a forces sale is a liability rule; his property may be taken away if he is compensated

A property rule would allow D to prevent taking unless he was satified with the agreement

An inalienability rule would freeze the entitlements, not giving D the opportunity to sell his property if he so wished

Spiller v. Mackereth (1976 at 353)--TENANCY IN COMMON

Before an occupying cotenant can be liable for rent, he must have denied his cotenants the right to enter--each tenant has an equal right to occupy

Majority rule--Occupying cotenant is not liable for rent notwithstanding a demand to vacate or pay rent (355)

Minority rule--Liability for rents is established upon on a continued occupancy after a demand to vacate or pay rent (355)

Majority rule may promote inefficiency--if owner values occupying land at $800 and a 3d party wants it for $1400, possessor/owner will stay because he would only recieve $700 rent. Therefore, the property will not go to who values it most

Court may imply fiduciary responsibilities between cotenants--especially in family situations




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