Co Ownership - Property

1. Rules

   1. Forms of co-ownership. Ownership may be consecutive (A B) or concurrent (A & B). Three types of concurrent relations: (1) tenancy in common (TIC), (2) joint tenancy (JT), and (3) tenancy by the entirety (TBTE). Each are defined by “unities.”

1. Tenancy in common. Tenants have a separate, undivided interest in the property (“seised by the moiety”). The interest of each is descendible, so there are no survivorship rights. E.g. A B & C. If B dies and D inherits, C & D are now both owners. May be partitioned.

2. Joint tenancy. Similar to TIC except A & B are considered a single owner, “seised by the moiety” (share) and “by the whole” (“per my et per tout”). Therefore, instead of descendible interests, last living tenant has survivorship rights. E.g. if A & B are JTs and B dies, A gets whole property. To sever, B may convey interest to C and break “unities,” or request partition.

   1. Inheritance. A joint tenant cannot pass her interest by will because it is “extinguished” at death. Huff v. Metz (Miss. 1996). Federal law still requires her estate to pay estate taxes, however.

   2. Creditors. If joint tenant is alive, creditors may seize/sell her interest in property; if dead, creditor has nothing to seize. Rembe v. Stewart (Iowa 1986).

   3. Interest unity. May not be literal; if A pays ¹/₃ and B ²/₃ with intention to split sale price accordingly, OK. Moat v. Ducharme (Mass. App. 1990).

3. Tenancy by the entirety. Similar to JT except A & B are husband (H) and wife (W). Neither can defeat right of survivorship of other by conveyance. No judicial partition either, except by divorce. Limited to real property in most jurisdictions.

2. Conveying TICs v. JTs. By default, courts will presume a conveyance to multiple owners creates a TIC, unless A & B are married. Judges are very particular about this.

   1. Specification of JT. The conveyance must specify that A & B have survivorship rights, e.g., “to A & B as joint tenants with right of survivorship.” Hoover v. Smith (Va. 1994). Courts will also accept “jointly, as tenants in common, with survivor rights.” Germaine v. Delaine (Ala. 1975).

   2. Deed that conveys JT and TIC. Unless ambiguous, a deed conveying JT in its granting clause will overrule a TIC in the habendum (“have and hold”) clause. Kipp v. Chipps Est. (Vt. 1999)

3. Partition and severance of co-ownership.

   1. Converting a TIC into a JT. Traditionally, if A & B were in a TIC, they would have to convey interest to C (a “strawman”) and have C A & B as JT. Now, A may simply convey interest to self&B as JT. Riddle.

   2. Severing a TBTE. If a house held in TBTE burns down and the jurisdiction restricts TBTE to real property, the insurance proceeds may be held in JT (better view because this is closer to the grantor’s intent in creating a TBTE) or a tenancy in common (default presumption). Keep in mind the land is still held TBTE.

   3. Severing a JT via conveyance. JT is severed when A or B breaks a unity, e.g. by conveyance. (Under TBTE, only H and W together may sever.)

      1. Liens. Liens do not extinguish JT absent conveyance of deed following expiration of redemption period. Harms.

      2. Mortgages. Mortgages are technically conveyances, so under the “title theory,” mortgages sever JTs. Under the “lien theory,” mortgages are like liens, so JT remains. Harms. Although the Harms court treated mortgage like lien and removed when A died, there are four possibilities when A conveys less-than-fee-simple interest (mortgage, lease, life estate, etc.) See, infra, Table 8.

      3. Leases. Most courts treat leases like mortgages, unless they are very long, in which case they are more analogous to conveyances. Reason: the loss of the survivorship feature would come as a surprise to the people who use JTs as will substitutes.

   4. Severing a JT unilaterally. If A murders B, JT is severed. Otherwise:

      1. Traditional. To unilaterally sever, A has to “enfeoff” (grant interest in land to) a strawman, and have him convey interest back. Riddle.

      2. Majority / modern. Now, joint tenant may enfeoff herself. Riddle.

   5. Simultaneous death. If A & B are in JT and die within 120 hours of each other, property is distributed as if A had survived and as if B had survived. Uniform Simultaneous Death Act.

2. Analysis

   1. Forms of co-ownership.

      1. Joint tenancy. These are popular because they avoid probate.

      2. Tenancies by the entirety. These are popular because they offer limited creditor immunity—creditor of H but not W cannot take whole property.

   2. Partition & severance of co-ownership.

      1. Mortgages. As there are four possible outcomes for when A conveys less than a fee simple interest, courts have to choose one. One approach is whether B intended to sever JT, and if not, whether creditor should take the risk of losing his security.

      2. Conversion between TICs and JTs. The traditional rules are relics of feudalism; some courts have liberalized them because the strawman may be expensive and contradicts A’s intent, even if B does not want severance. Other courts have kept them as is, since it should be difficult for A to eliminate B’s right of survivorship. Riddle.

      3. Simultaneous death. Before the USD Act, parties would fight to prove that, e.g., B died first, so entire property should pass to A’s descendants.

3. Major Cases

   1. Riddle v. Harmon (Cal. App. 1980) (324)

      1. (Poche, J.) H & W in JT. W conveyed interest in property to herself as TIC. Traditionally, this would require a strawman, but now, this is acceptable.

   2. Harms v. Sprague (Ill. 1984) (330)

      1. (Moran, J.) A & B in JT. To help friend secure IOU, A mortgaged share of property to friend’s creditor, C. A died. Court treated mortgage as lien that did not survive A, so B received whole title free and clear of C’s interest.

A & B are in JT. A transfers interest (lease / mortgage) to C. (334)

1. Rules

   1. Partitions. When A & B wish to eliminate the concurrent ownership, may (1) agree on partition; (2) get a court to equitably partition the property in kind; (3) sell the entire property and split sale price; or (4) give the entire property to A but require A to compensate B. (Weakening) presumption prefers partition in kind. Delfino.

      1. Partition in kind. Courts will attempt to divided the property equally.

         1. Preferences. Court will not necessarily take into consideration preferences of parties re: which fraction of property they will control, even if one quarter is closer to other property they own. Gray v. Gotts (N.C. 1982). But see Kean.

         2. Owelty. If A receives more valuable section than B, may owe B cash difference, called “owelty.” Delfino.

      2. Partition by sale. Court may order sale when petitioning party proves (1) physical attributes of land make partition in kind impracticable and (2) interests of all owners are promoted by sale. Delfino.

         1. Economic hardship. Economic hardship to petitioner relevant but not dispositive. Ark Land. If value of land is substantially less when divided, may sell. Johnson v. Hendrickson (S.D. 1946).

   2. Rent. Typically A & B owe each other fiduciary duty and no rent (esp. if A & B family).

      1. Majority. In a TIC, A is not liable to B for rent unless (1) they agree to pay rent or (2) A “ousts” B. Spiller. Two types of ouster: (1) adverse possession and (2) liability.

         1. Adverse possession. When A occupies property and claims it belongs solely to A, B may charge rent to prevent AP. Spiller. If A & B family, some courts will not allow AP. Ex parte Walker (Ala. 1999).

         2. Liability. When A...