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# Session 10 - Concurrent Ownership & Partition

> Joint tenancy, tenancy in common, tenancy by entirety, partition, and ouster

## I. Rule Against Perpetuities - Bar Exam Review

### Basic Rule Application

* **Executory interests** are subject to RAP
* Measured at **time of creation**, not time of vesting
* Must vest within **lives in being plus 21 years**

### Example Problem

**Conveyance**: "To Barry, but if at any time Barry, his heirs, successors, or assigns shall use the premises for any purpose other than a personal residence, then to Zach or his surviving descendants"

**Analysis**:

* Barry: **Fee simple subject to executory limitation**
* Zach: **Shifting executory interest**
* RAP applies: Zach's interest is **VOID** (cannot guarantee vesting within perpetuities period)
* **Result**: Strike Zach's interest → Barry has **fee simple absolute**

### Modern Approach - USRAP/Wait-and-See

* **90-year waiting period** to determine if interest vests
* If fact pattern indicates time elapsed (e.g., "60 years ago"), discuss both:
  * Common law RAP (void)
  * USRAP (wait and see if vests within 90 years)

### Exam Note

* Recently tested on California Bar (first time for RAP)
* Unlikely to appear again soon

***

## II. Joint Tenancy

### Definition

* **Two or more persons** with ownership interest in land
* **Last remaining survivor** succeeds to **100% ownership**
* **Undivided interest** (not physical division)
* Equal shares required

### Creation

#### Common Law - Four Unities Required

1. **Time**: Interests must vest at same time
2. **Title**: Interests must derive from same instrument
3. **Interest**: Equal shares
4. **Possession**: Equal right to possess entire property

#### Common Law - Straw Man Requirement

* **Cannot** execute deed naming yourself and another as joint tenants
* **Required process**:
  1. Transfer property to third party (straw person)
  2. Third party re-transfers to you and partner
  3. This establishes all four unities

#### Modern Approach

* **No straw man required**
* Can execute deed naming yourself and another
* **Specific language required**: "To A and B as joint tenants with right of survivorship"
* Grantor must clearly evidence intent to create joint tenancy

#### Default Rules

* **Modern**: Ambiguous conveyance defaults to **tenancy in common**
* **Common law**: Ambiguous conveyance defaults to **joint tenancy**

### Severance of Joint Tenancy

#### 1. Sale/Conveyance to Third Party

* **No notice required** to other joint tenant
* **Effect**: Severs joint tenancy
* **Result**: Buyer becomes **tenant in common** with remaining original tenant (50-50)
* Fact patterns often emphasize "without telling" other tenant → has **no legal significance**

#### 2. Transfer/Conveyance to Oneself

* Re-execute deed naming yourself as tenant in common with other tenant
* No notice required
* Severs joint tenancy

#### 3. Mortgage - Two Theories

##### Majority View - Lien Theory

* Mortgage does **NOT** sever joint tenancy
* **Condition**: As long as payments made and no foreclosure
* **Rationale**: Bank only attaches lien, does not take title
* **Death scenario**: If mortgaging tenant dies before foreclosure:
  * Surviving tenant takes property **free and clear**
  * Bank loses (lien attached to interest that vanished)
  * Very risky for banks

##### Minority View - Title Theory

* Mortgage **DOES** sever joint tenancy
* **Rationale**: Bank takes actual title to property
* Bank becomes **tenant in common** with other tenant
* If loan paid back, bank reconveys title
* **Death scenario**: Bank retains 50% as tenant in common

##### Exam Approach

* If jurisdiction not specified, **discuss both theories**
* Default to **majority view** (lien theory)

### Wills and Inheritance

* **Cannot devise joint tenancy interest by will**
* If you die first, you have **zero interest** to pass
* Survivorship trumps testamentary disposition
* **Heirs get nothing** if you die before co-tenant

### Rights and Restrictions

* **Equal right of enjoyment**: Cannot restrict one tenant more than another
* Can sell interest without permission (creates tenancy in common)
* Each tenant entitled to 50-50 split of profits derived from land

### The "Motive for Murder" Rule

* If you kill co-tenant to gain 100% ownership:
  * **If caught**: You **forfeit** your interest
  * Other joint tenant's heirs receive the property

***

## III. Tenancy by the Entirety

### Definition

* **Joint tenancy + marriage**
* Can only exist between married spouses
* Carries survivorship right

### Termination Methods

1. **Death** of one spouse
2. **Divorce**
3. **Mutual agreement** (must be voluntary)

### Restrictions

* **Cannot unilaterally transfer** or give away property
* **Spousal agreement required** for any conveyance
* Creditors may potentially terminate (community property issue)

***

## IV. Tenancy in Common

### Core Characteristics

* **No survivorship right** (key distinction from joint tenancy)
* **Undivided interest** (like joint tenancy)
* **Unequal shares permitted**
* Interest passes to **heirs** upon death

### Ownership Examples

* A and B each have 50%
* If A dies: A's 50% goes to A's heirs
* B and A's heirs become tenants in common (50-50)

**Divisibility**:

* A can sell 25% to C, retain 25%
* Result when A dies: B (50%), C (25%), A's heirs (25%)

### Creation

* **Modern default**: "O to A and B" presumed tenancy in common
* Explicit: "O to A and B as tenants in common"
* No survivorship language = tenancy in common

### Comparison to Joint Tenancy

* **Joint tenancy**: "Motive for murder" (get 100% if co-tenant dies)
* **Tenancy in common**: "No motive for murder" (only get what you already have)

***

## V. Partition

### Overview

* Judicial remedy when co-tenants disagree about property disposition
* Court applies **best interests test** (balancing test)

### Types of Partition

#### Partition in Kind

* **Physically dividing** the property
* Example: "North half to you, south half to me"
* Consider: geographic features, improvements, practicality

#### Partition for Sale

* **Judicial sale** of entire property
* Proceeds split according to ownership percentages
* Example: \$100,000 sale price
  * 75% owner receives \$75,000
  * 25% owner receives \$25,000

### Best Interests Test - Balancing Factors

**Consider**:

* **Occupancy**: Does one party live on property?
* **Business use**: Does property support someone's livelihood?
* **Financial interests**: Pure investment vs. personal use
* **Relative hardship**: Burden on each party
* **Property characteristics**: Can it reasonably be divided?
* Market conditions
* Development potential
* Physical features (mountains, creeks, dwellings)

**Example Scenario**:

* **Party 1**: Lives on property, runs marijuana business providing medicine to patients, livelihood depends on it
* **Party 2**: Lives in Hamptons, purely financial interest, wants money for Paris trip
* **Analysis**: Balance Party 1's livelihood needs vs. Party 2's financial gain

### Exam Approach

* **Discuss both types** unless call of question specifies one
* **No right answer** - equity analysis balancing competing interests
* **Avoid**: "The judge will decide" or "the court will decide"
* **Focus on**: YOUR arguments and analysis using best interests standard

***

## VI. Ouster

### Definition

**Ouster** occurs when one co-tenant refuses to honor another co-tenant's rights by:

* Claiming exclusive ownership
* Denying access to property
* Installing "No Trespassing" signs
* Changing locks
* Erecting fence to exclude co-tenant
* Threatening violence

### Elements

1. **Assertion of exclusive rights** ("This is MY property!")
2. **Refusal to honor co-tenant rights** (denying access, claiming sole ownership)

### Legal Consequences of Ouster

#### 1. Rent Obligation ⚠️ HEAVILY TESTED

* Ousting tenant owes **RENT** to ousted tenant
* **Rationale**: Taking co-tenant's interest/preventing enjoyment
* **Calculation**: Proportion of reasonable rental value
  * Example: $10,000/month rental value → owe $5,000/month for 50% interest
* **Exam tip**: Sufficient to state "owes rent" without exact calculations
* Can recover **back rent** when property eventually sold

#### 2. Adverse Possession Clock Starts

* **General rule**: CANNOT adversely possess co-tenant UNLESS ouster occurs
* **Reason**: Co-tenants have equal right to possession
* **Ouster as trigger**: Moment of ouster = AP clock begins
* **Concurrent obligations**: AP clock runs even if rent being paid
  * Payment satisfies legal obligation but doesn't negate hostile possession
* Ousted tenant still entitled to **access** even if receiving rent

### Common Fact Pattern

1. Two joint tenants exist
2. One sells interest to third party (no notice)
3. Selling tenant dies
4. Remaining original tenant unaware of sale
5. Buyer approaches: "I'm the new owner"
6. Original tenant: "I don't know you, get off MY property!"
7. Installs signs, erects fence
8. **Result**: OUSTER → Rent owed + AP clock starts

### Exam Frequency

* Tested **multiple times** over 12 years
* Appears in essays and multiple choice
* Almost **every other year**
* Also tested on California Bar

***

## VII. Rents, Profits, and Expenses

### Profits Derived from Land Use

#### Must Share

**Rule**: If profit **derived from use of land** → must share proportionally

**Examples**:

* Growing marijuana for sale → split 50-50
* Renting to third party → split rent 50-50
* Oil, gold, minerals → split proceeds 50-50

#### Need Not Share

**Rule**: If income **not derived from land use** → no sharing required

**Example**: Virtual business using address only (no physical activity on land)

### Property Taxes and Mortgage Payments

#### General Rule

* Each tenant responsible for **proportional share**
* Default: 50-50 for equal ownership

#### Reimbursement

* If one tenant pays all expenses while other doesn't contribute
* Can recover **reimbursement** when property sells
* **Example**: Property sells for \$100,000
  * Paying tenant: \$60,000
  * Non-paying tenant: \$40,000
  * Differential = reimbursement

### Repairs and Improvements

#### No Automatic Obligation

* Co-tenants **NOT** obligated to pay for repairs/improvements
* **Exception**: If agreement exists between co-tenants

#### Reimbursement Available

* One tenant pays for improvements/repairs
* Can get reimbursed when property sells

#### Subjective Nature Problem

* What constitutes "necessary" is subjective
* **Necessary repairs** (e.g., mold removal): More likely reimbursed
* **Unnecessary improvements** (e.g., adding elevator): Questionable reimbursement
* Aesthetic disagreements between co-tenants

***

## VIII. Restraint on Marriage

### General Rule

* Restraints on marriage in conveyances are **disfavored**
* Court examines grantor's intent

### Key Distinction - Duration vs. Penalty

#### "So Long As" = Support Until Marriage (VALID)

* **Durational language**
* **Purpose**: Provide support UNTIL remarriage
* **Intent**: Support (not penalty)
* **Example**: "To Betty so long as she lives on Madacre and does not remarry"
* **Analysis**: Intended to support Betty until new spouse can support her

#### "On Condition That" = Penalty for Marriage (INVALID)

* **Conditional language**
* **Purpose**: Penalize marriage
* **Intent**: Punitive
* **Treatment**: More likely struck down

### Application

Analyze whether restraint is:

* Support-oriented (valid)
* Penalty-oriented (invalid)

***

## IX. Adverse Possession - Co-Tenant Context

### General Rule

* **CANNOT** adversely possess co-tenant WITHOUT ouster
* **Reason**: Both have equal right to possession
* **Exception**: Ouster changes this

### When Ouster Occurs

* Adverse possession clock begins
* All elements still required: Continuous, hostile, open/notorious, actual, exclusive
* **Rent obligation continues** even while adversely possessing

### Case Reference - Lutz v. Van Volkenberg

* Random items in woodshed held **insufficient** for actual occupancy
* No evidence of real improvement
* Lacked sufficient enclosure
* **Distinguishing factor**: Presence/absence of fence matters

### Actual Occupancy Issues

* **Question**: Is occasional use of storage shed sufficient for 10 acres?
* **Standard**: "Used as reasonable owner would use"
* Large parcels may not require constant physical presence
* But must show actual improvement/use

### Selling Interest After Ouster

* If ousted tenant sells their interest
* Buyer steps into ousted tenant's shoes
* **AP clock does NOT reset**
* Clock continues from original ouster

***

## X. Exam Tips and Strategy

### Writing Style

* **Never** use "I" or "We"
* **Avoid**: "The judge will decide" or "the court will decide"
* **Focus on**: YOUR arguments and analysis
* In rules: Can reference what "court will balance"
* In analysis: Show YOUR reasoning

### Reading Fact Patterns

* Read **interrogatories (questions) FIRST**
* Read slowly and analytically
* Look for significance in every detail
* "Properly executed deed" = don't question validity
* "Valid will" = don't question validity
* Timing references (e.g., "11 years ago") = may trigger time-based rules
* Specific language: "so long as" vs. "on condition that"

### Common Law vs. Modern

* Usually **explicitly stated** in fact pattern
* If unstated, may need to **discuss both**
* Key differences:
  * Joint tenancy creation (straw man)
  * Default presumptions (JT vs. TIC)
  * Life estate language ("and heirs")

### Current Study Status

After Session 10, can complete **50% of essay questions**:

* Adverse possession
* Estates and future interests
* Concurrent ownership
* Partition and ouster

***

## XI. Practice Problems - Professor's Insights

### Difficulty Assessment

* "Not really that hard"
* "Once you get the hang of it, not gonna be tough"
* Will "look back and say it's actually quite simple"

### Professor's Writing Style

* "I like to be very vague"
* "Nothing's ever clear"
* If something clear = **red flag**
* Vagueness "causes you to think"
* "Never points in the obvious"

### Student Performance Notes

* Few students "hit it out of the park" on adverse possession essay
* Many missed **Lutz** issue
* Insufficient analysis of actual occupancy
* This is how professor differentiates students on take-home finals

### Answer Keys Provided

* Student answers (not model answers)
* May not match all questions
* Some questions may lack answers
* Questions recycled with name changes (Blackacre → Greenacre)
* Used even on remote 24-hour finals