Exam Guide 1 I. Right to Exclude v. Rights of Access 3

VII. Common Ownership

A. RIGHTS AND OBLIGATIONS OF CO-OWNERS

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  Can be transferred by the following language: “O conveys/devises Blackacre to A and B as tenants in common”
  
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  When a tenant in common dies, his interest goes to his devisees under his will or to his heirs under state intestacy statute
  

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  Can be transferred by the following language: “O conveys/devises Blackacre to A and B as joint tenants”
  
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  Right of survivorship: when joint tenant dies, her property interest is immediately transferred to the remaining joint tenants in equal shares, so the joint tenants have no rights to devise their interests since it goes to the other joint tenants upon death
  
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  Requirements to create joint tenancy: (1) the interest of each joint tenant must be created at the same moment in time (2) all joint tenants must acquire title by the same instrument or title, (3) all joint tenants must possess equal fractional undivided interests in the property and their interest must last the same amount of time, (4) all joint tenants must have the right to possess the entire parcel
  
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  Severance: a joint tenancy is destroyed if one of the joint tenants sells their interest, so the right of survivorship is destroyed. Joint tenant who wishes to destroy the right of survivorship while retaining her life interest can convey her interest to another who conveys it back.
  
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  Dual life estates with alternative contingent remainders: will establish an indestructible right of survivorship, can be created in language such as “O to A and B as life tenants, with a remainder in A if A survives B and a remainder in B if B survives A. “
  

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  If one co-owner chooses to live on property and another chooses not to, tenant in possession has no duty to pay rent to non-possessing tenant
  
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  Duty to pay rent if possessing tenant ousted non-possessing tenants
  
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  Right to share any rents paid by possessing third parties
  
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  Right to lease interest without consent of other co-tenants; rents shared only if other co-tenants agree to be bound by leasehold, waiving possession rights for term of lease
  
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  Duty to share basic expenses (e.g. mortgage payments, taxes, and insurance)
  
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  Co-owner exclusively possessing bears burden of expenses
  

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  Constructive ouster arises when property is too small to be physically occupied by all co-owners
  

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  #Singer – same sex couples unlikely to be allowed to create tenancy by the entirety through contract
  

Olivas v. Olivas, N.M. Ct. App. (1989)

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  Facts: Husband and wife separate and husband moves out. They hold home as community property during marriage and tenants in common afterwards.
  
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  Rule: Constructive ouster is possible when emotions of divorce make it impossible for spouses to continue sharing community property
  
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  Holding: Court did not find constructive ouster
  

Carr v. Deking, Wash. Ct. App. (1988)

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  Facts: Father and son own land as tenants in common, leasing it to farmer in oral agreement for 1/3 of crop. Son informs farmer he wants cash rent. Farmer declines and executes written crop-share lease with father, without consent of son.
  
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  Rule: Co-tenant may lawfully lease his own interest in common property to another without consent of the other tenant and without his joining the lease; the leasee effectively becomes a co-tenant (“steps into the shoes” of leasing co-tenant)
  
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  Rule: Non-joining co-tenant may not demand exclusive possession, but may demand co-possession
  
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  Holding: Son not entitled to eject lessee, proper remedy is partition
  

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  Facts: Joint tenant leases interest in property to third person, without consent of joint tenant and dies during lease. Co-tenant seeks exclusive possession as surviving joint tenant.
  
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  Rule: Lease does not sever joint tenancy; interest of decedent joint tenant extinguishes upon his death and lease of property also expires when lessor dies
  
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  Holding: Lease no longer valid
  
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  #Singer – feels this rule should be less forgiving in residential context than in business
  

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  Facts: Husband and wife co-own land. Father leases lands to son without consent of mother. Mother wins land in divorce and notifies son she is terminating lease. Son continues occupancy.
  
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  Rule: Tenants in common may lease interest to third persons and party obtaining such property in divorce assumes it subject to any lease
  
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  Holding: Father does not encumber interest of mother and she took lands subject to son’s continuing lease agreement
  

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  Facts: Plaintiffs injured in car accident. Defendant conveys property to their sons to keep it away from plaintiffs in settlement.
  
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  Rule: Interest of one spouse in real property, held in tenancy by the entirety, is not subject to levy and execution by his or her individual creditors absent consent of both spouses.
  
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  Holding: Court declines to set aside conveyance
  
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  Dissent: spouses take equal rights and also equal disabilities and creditors of either spouse may levy and execute upon separate rights of survivorship
  

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  MA, MI, NC: possession and profits of estate subject to husband’s exclusive dominion and control
  
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  AL, AR, NJ, NY, OR: interest of debtor spouse may be sold or levied upon, subject to other spouse’s contingent right of survivorship
  
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  10 states + DC: attempted conveyance by either spouse is void, estate may not be subjected to separate debts of single spouse
  
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  KY, TN: contingent right of survivorship separately alienable and attachable by creditors
  

D. SEPARATE PROPERTY

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  Some states have statutes call for “equitable distribution” of property subject to (1) economic need, (2) rehabilitation, and (3) contributions of the parties
  
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  Some states provide for “alimony” or periodic support payments
  

E. COMMUNITY PROPERTY

F. OTHER ASPECTS OF MARITAL PROPERTY