1. Class XVI – Concurrent Ownership (1) Prof. David Glazier Oct 17, 2006 PropertyProperty

2. Division of Ownership To A for life T hen to B for life Then to C Temporal: Concurrent: To A To B To C

3. Overview of Today’s Class Introduction to concurrent ownership –Tenants in common –Joint tenants –Tenancy of the entirety Severance of joint tenancies Riddle v. Harmon Harms v. Sprague

4. Concurrent Interests Generally Interest v. Estate - Interests define relationships between persons holding an estate - Title must still be in form of a recognized estate Concurrent interest may be in a present or future estate - Can be a life estate, fee simple, etc. - Can be a remainder, executory interest, etc. To A To B To C

5. Tenants in Common Separate but undivided interest in property - O conveys Blackacre “To A and B” Tenancy in common is: - alienable - devisable - descendible Ownership shares are fractional (e.g. ½, ¼) - Do not have to be equal, but - Rebuttable presumption of equality - Each cotenant has right to possess the whole Tenancy in common is modern default

6. Joint Tenants Right of survivorship is key attribute - share of deceased owner automatically passes at death to surviving owner(s) - cannot be devised or inherited Requires four “unities” to create: Time: interests must be created at the same time Title: interests must be created by same instrument Interest: all JTs must have identical interests Possession: all JTs must have same right to possess Severing any of the unities destroys this interest

7. Tenancy by the Entirety Requires five “unities” to create: Time: interests must be created at the same time Title: interests must be created by same instrument Interest: all JTs must have identical interests Possession: all JTs must have same right to possess Marriage: owners must be validly married Neither party can unilaterally sever Gives immunity to actions by individual creditors Generally default estate where recognized - if conveyance made to husband & wife jointly

8. Concurrent Interests Presumption parties will cooperate - No caselaw from functional examples! Legal remedies available when they don’t Ouster–tenant interferes with possession by other(s) - possessor liable for fair rent for other’s share Accounting-action for fair share of proceeds Contribution-action for costs from other cotenants Partition-action to end cotenancy - May be in kind or by sale

9. Riddle v. Harmon (1980) The Facts: - Mr. & Mrs. Riddle held real estate as JTs - Mrs. R. didn’t want husband to have her 1/2 - Atty prepared deed granting Mrs. R her 1/2 - Prepared will devising her interest - Mrs. R. died 20 days later

10. Riddle v. Harmon (1980) The Common Law: - JT has indisputable right to sever -- Can be by gift or sale -- Knowledge of JT not required - Traditionally done by transfer to “strawman” -- required by English feoffment ceremony - More modern approach to transfer to trust

11. Riddle v. Harmon (1980) The Decision: - Cal now allows creation by direct transfer -- Property owner can deed to self + other - No real reliance on historic practice - Other jurisdictions allow direct transfer - California should now also

12. Harms v. Sprague (1984) The Facts: - William (W) & John Harms (J) are JTs - John’s friend Charles Sprague (S) buys home from Carl & Mary Simmons (CMS) - J cosigns loan, gives mortgage on JT share - J moves from JT property into home with S - J dies, devising property to S

13. Harms v. Sprague (1984) John Harms William Harms Carl & Mary Simmons $ and loan Charles Sprague Mortgage RIP John Harms

14. Harms v. Sprague (1984) The Legal Posture: S claims ownership of 1/2 of JT CSM claim mortgage lien on 1/2 of JT Trial court holds mortgage severed JT - S owns 1/2 via J’s will - CSM have valid mortgage App. court finds mortgage does not sever JT - W owns all with no mortgage

15. Harms v. Sprague The Decision: Dependent upon Illinois view of mortgage - Title theory - Lien theory Court adopts lien theory, JT unaffected W takes all on death of J - by virtue of original conveyance - lien ceases to exist with J’s interest

16. Harms v. Sprague (1984) John Harms William Harms Carl & Mary Simmons $ and loan Charles Sprague Mortgage What should the Simmons have done? What should John Harms have done?

17. Upcoming Schedule Thursday Oct 19 – no class Tuesday Oct 24 – review take home, estate wrap-up (lecture – no reading) Thursday Oct 26 – finish joint tenants Tuesday Oct 31 – marital property (lecture) - all subsequent classes one later than shown on syllabus

18. Take Home Problems 15 multiple choice questions - Open book, open note - Please do it yourself Due at start of class next Tuesday - Turn in answer sheet, keep questions Grading: 13-15 right – 5 points 9-12 right – 4 points 6-8 right – 3 points 3-5 right – 2 points 0-2 right – 1 point No submission – 0 points

19. RAP Online Tutorial Tutorial developed by Prof. June Carbone of Santa Clara School of law: http://www.scu.edu/law/FacWebPage/Carbone/RAP/start.htm

20. Questions?