Property Law Spring 2017

Professor Marc H. Greenberg

Golden Gate University School of Law

Co-ownership
 Co-ownership
• Common Law Concurrent Interests
– Tenants in Common – have separate but undivided interests in the
property, descendible and subject to conveyance by deed or will.
– Joint Tenancy – have a right of survivorship – each owns the undivided
whole of the property – so nothing needs to pass upon death – the four
unities of time, title, interest and possession mark this concurrent
ownership interest – all four must be present or it is a tenancy in common
– Tenancy in the Entirety – created only in husband and wife – enforced in
less than half the states in the USA
– The default presumption in the USA is that property is concurrently held
by tenants in common. Joint tenancy is typically established explicitly,
with an express right of survivorship identified.
– Property held in joint tenancy avoids probate since no interest passes upon
the death of one of the owners.
– Note the different treatment of private debt and IRS debt in JT
 Co-ownership
• Riddle v. Harmon
–Can you unilaterally terminate a joint tenancy by conveying your interest to
yourself as a tenant in common?
–Despite the fact that the Court notes that “handing oneself a dirt clod is
ungainly”, the decision is that you can unilaterally terminate a joint tenancy
by conveying your interest to yourself as a tenant in common.
–The Court points out that joint tenancy has always been subject to
destruction by conveyance of the interest to a third party, resulting in a
tenancy in common, and sees no reason why the rule should be different if no
third party is involved.
–Note that while murder terminates a joint tenancy, the perpetrator is not
allowed to retain the right of survivorship in the deceased’s share.
 Co-ownership
• Harms v. Sprague
– Is a joint tenancy severed when less than all of the joint tenants
mortgage their interest in the property? No, says the Court, because a
mortgage simply creates a lien on the property – no transfer of ownership
takes place until the mortgage is foreclosed on, and the period for
redemption of the interest has passed, following that foreclosure. Once
the foreclosed upon property results in a transfer of the property, the joint
tenancy is destroyed.
–Does such a mortgage survive the death of the mortgagor as a lien on the
property? No, because upon the death of a joint tenant, ownership of the
property, which has always been held jointly, does not pass to the survivor
– it was always held in the entirety by each tenant. However, the
mortgage interest was created solely by the decedent, and his death here
terminated that property interest. If the interest was created by a
promissory note, there may be a claim that can be asserted for the cash
value due on the note against the decedent’s estate.
 Co-ownership
• Delfino v. Vealencis
– What is the difference between a “partition in-kind” and a “partition by
sale”. What is the basis for the general rule favoring “partition in-
kind”?
– What conditions should be found before a partition by sale should be
ordered?
– Who bears the burden of proving that a partition by sale is warranted?
– Suppose Ms. Vealencis’ house and business was located in the center of
the property – would that have changed the outcome in this case? Why
or why not?
– Most partition cases end with a sale – does the note following this case
help explain why?
 Co-ownership
• Spiller v. Mackereth
– The general rule is that in absence of an agreement to pay rent or an
ouster of a cotenant, a cotenant in possession is not liable to his
cotenants for the value of his use and occupation of the property.
– How do we determine ouster? One definition is akin to adverse
possession – the cotenant must show the defendant has asserted
absolute ownership and a denial of the cotenancy relationship. Where
the issue is whether rent is owed to other cotenants, evidence of a
claim of absolute ownership is not required.
– This court finds that before an occupying cotenant can be liable for
rent, he must have denied his cotenants the right to enter . Does this
make sense?