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Flashcards in 9) Concurrent Deck (54):
1

remedies when concurrent ownership goes bad (or at severence)

partition accounting

2

abandonment

opposite of ouster--you DN owe rent to someone who isn't living there bc they abandoned

3

income from SP

--remains in SP --exception: husband spends all his time manging his SP stock portfolio...profits become CP bc of the effort he spent on it during the marriage

4

JT: leases, mortgages, and severance...

W: leases and mortgages DO NOT sever JTs (so when person who leased it to you dies you lose your share, survivorship was intact)

5

Homestead laws

in most states protect interests of survivng spouse/children from claims of credtiors, ko like life estate

6

concurrent owners; expenses/burdens, how, and which? (4)

share by fractional division: mortgage, property taxes, insurance, maintenance and necessary repairs No duty to share costs of UNNECESSARY IMPROVEMENTS unless you agree

7

separate property states -- on divorce (inc 4 factors)

equitable distribution based on economic need, status, rehabilitation, sometimes fault

8

Joint tenancy: survivorship etc

Survivorship: YES u. transfer: YES u. termination: YES u. encumbrance: YES *BUT can't encumber co-Ts interest on survivorship

9

Carr v. Deking

F: P owner was TIC with dad who executed lease w D lessee w/o P's knowledge or consent H: TICs can use, benefit from, posess entire property so ok to lease your interest. Remedy is partition

10

Tenhet v. Boswell

F: P had joint tenant who leased his share to D and then died. H: lease made by joint-T can't survive joint T's death bc that would destroy co-joint-T's right of survivorship (so it was mroe like a life esatte PAV)

11

concurrent ownership expenses and burdens -- EXCEPTION

No duty to share costs of UNNECESSARY IMPROVEMENTS unless you agree

12

Joint tenancy: requirements to create

TTIP: unity of: Time (all created at same time, like privity) Title (all created at same time) Interest (must have equal fractional unidivided interest in property and they must all last same amt of time) Possession: all have right to possess entire parcel

13

joint tenancy; severance (3)

you can transfer your property interest and this ends the right to survivorship self-severance allowed note: if A, B, C, D each have 25% and A sells his share to B then it's not that B now has 50% -- he has 25% as JT and 25% as TIC

14

constructive ouster

sometimes divorce otherwise impossible to both live there (eg small cottage) physical abuse

15

divorce: business goodwill

can be dividied in may states enterprise good will (divisible--the kind that would still exist if you sold the business) vs personal good will (eg dentist): not devisible

16

tenancy in common: survivorship/etc

survivorship: no unilateral termination: yes unilateral encumberance: yes

17

ouster: rent? and why?

the situation where concurrent owners do have to pay each other rent -- bc you took the other co-T's right to possession

18

O'Brien v. O'Brien

F: P husband and D wife are divorcing after D spends 9 years working while P was in med school H: med license is subject to equitable distribution (NY statute 'property of any form')

19

divorce and professional licenses: minority rule

she invested and should get fair returns O'Brien v. O'Brien

20

AP and ouster?

hard to prove, each entitled to legally occupy the property would have to put on notice that you are asserting full ownerhsip rights over the other one

21

concurrent ownership, possession, and rent (3 scenarios)

normally no rent owed bc each has undivided right to possess the whole BUT if only one is living there and no rent, must pay all the expenses if value of occupation exceeds the payments DO PAY RENT IF OUTSTER

22

concurrent ownership and trespass

each has undivided right to possession so each can invite others in, even if other objects

23

tenancy in common: def and ex.

default form O to A and B (as Ts in common) ok different fractional shares

24

joint bank accounts

usu dn require 4 unities but does have survivorship

25

separate property states -- exception to the separateness

ok share if you choose and obligation to support spouse

26

divorce and professional licenses: majority rule

not property (bc: no traditional property interest, not alienable, acq'd by work not just $, can't really determine value) BUT STILL: contributions towards getitng license/degree and opportunity cost of not pursuing greater earning potential should lead to greater support or lump sum award

27

Tenancy by the entirety: def

--only for married couples --W: choose into it, not default

28

concurrent ownership (3)

each T has right to possess the entire parcel all have to share (proportionally by % ownership) any profits, and contribute to costs can always k-around, these are just defaults

29

concurrent ownerhsip: how much rent?

only 1/2 FMV (person you're paying only has 1/2 interest in property)

30

com property -- what can you do w/ it? (4)

--each spouse owns 1/2 undivided interest in all the CP --each is fiduciary to other (must act in good faith for benefit of both) --often both must sign for somethign big like house --different rules re how creditors get at your idividual debts

31

F: P owner was TIC with dad who executed lease w D lessee w/o P's knowledge or consent H: TICs can use, benefit from, posess entire property so ok to lease your interest. Remedy is partition

Carr v. Deking

32

Uniform Prenupital Agreement Act (some jurisdiction) -- 3 requirements for it to be unenforceable

unconscionable when made AND no full disclosure AND no written waiver of rigths

33

marriage: separate properrty states

your SP: all the property/debt you bring into marriage and anything YOU earned after marriage

34

joint tenancy: survivorship - meaning

when JT dies, paroperty goes to remaining JTs in equal shares if you sever, other owners still have survivorship among themselves

35

community property: what's still separate?

1) property acq'd before marriage 2) property acq'd during marriage VIA: gift devise bequest descent 3) debt (usu, more compicated if post-marriage)

36

transmutation

spouses can convert CP to SP and vice versa, eg by prenup

37

F: P had joint tenant who leased his share to D and then died. H: lease made by joint-T can't survive joint T's death bc that would destroy co-joint-T's right of survivorship (so it was mroe like a life esatte PAV)

Tenhet v. Boswell

38

concurrent ownership and marriage

don't assume you have both...can have married couple where house is husband's SP

39

W's marriage schema

community property

40

F: P husband and D wife are divorcing after D spends 9 years working while P was in med school H: med license is subject to equitable distribution (NY statute 'property of any form')

O'Brien v. O'Brien

41

community property: what's the community property? (2 and a note)

earnings of each spouse during marriage all property acquired w those earnings can get complicated w mixed assets (eg you might retain a % interest in the house if you made the DP with SP)

42

jt, leases and survivorship -- cool way to say it

"there is no right to devise one's interest in a joint tenancy"

43

concurrent ownership -- one T pays for unnecessary repairs -- result

other Ts dnh pay BUT later at sale of property, the T who paid for the extra work will get value of profits from extra work

44

Olivas v. Olivas

F: divorcing husband suing D divorcing wife after she stayed in house N: there can be a costructive ouster or abandonment in divorce, uclear here so defers to lower court finding (abandonment)

45

transfer of interests: foreclsoure: traditional rule

depends on which came first: 1) lease first -- mortgager took subject to lease so lease survives foreclosure 2) mortgage first -- opposite

46

divorce is ouster?

some courts: yes, constructive. others: no, needs to be affirmative

47

what to do with CP at divorce? (3)

CP: splits evenly between spouses SP: retained by owner-spouse equitable distribution rules overlay CP! (eg no assets, one is neurosurgeon and one is homemaker)

48

F: divorcing husband suing D divorcing wife after she stayed in house N: there can be a costructive ouster or abandonment in divorce, uclear here so defers to lower court finding (abandonment)

Olivas v. Olivas

49

community property and death

wife can will all her SP and half of CP

50

separate property states--on death

often forced to give widow/er a certain amount of your estate, but ok will your separate propety during lifetime

51

affirmative outster

eg changing locks

52

tenancy by the entirety--survivorship etc

survivorship: yes unilateral termination: no, unless divorce or death unilateral encumbrance: NO (creditors can't reach it for debts by one spouse)

53

prenup enforceable?

usu

54

divorce: what if you've livedin different states?

apply laws of each state for periods lived there