1 00:00:00,040 --> 00:00:03,960 Welcome back to the Dee dive. Today we are not just skimming 2 00:00:03,960 --> 00:00:08,360 the surface of legal theory. We are wading into the swamp. 3 00:00:08,360 --> 00:00:10,640 We are tackling property law. Mm, hmm. 4 00:00:11,320 --> 00:00:15,600 And specifically, the chaotic, messy, and absolutely critical 5 00:00:15,600 --> 00:00:19,160 world of concurrent ownership. The swamp is a good metaphor. 6 00:00:19,200 --> 00:00:23,080 Or, you know, maybe a minefield, because on the surface this 7 00:00:23,080 --> 00:00:24,800 topic looks easy. It does. 8 00:00:24,800 --> 00:00:26,000 It feels intuitive. Right. 9 00:00:26,000 --> 00:00:27,640 People share things all the time. 10 00:00:27,680 --> 00:00:30,440 Roommates share apartments, Spouses share homes. 11 00:00:30,640 --> 00:00:32,119 Business partners share warehouses. 12 00:00:32,119 --> 00:00:37,840 It feels normal, but legally it is a minefield of archaic rules, 13 00:00:38,040 --> 00:00:41,840 medieval formalism and modern equity all colliding at once. 14 00:00:42,120 --> 00:00:44,320 I was looking through the stack of materials for this session. 15 00:00:44,320 --> 00:00:47,000 We've got treatise excerpts, case law from Florida and 16 00:00:47,000 --> 00:00:48,960 Pennsylvania, some really interesting law review articles 17 00:00:48,960 --> 00:00:51,840 from Marquette, and it struck me, we usually think of owning a 18 00:00:51,840 --> 00:00:54,280 house as a binary thing. It's mine or it's yours. 19 00:00:54,680 --> 00:00:58,080 But this material suggests that sharing property is actually a 20 00:00:58,080 --> 00:01:01,040 high stakes geometrical puzzle. That's exactly what it is. 21 00:01:01,040 --> 00:01:03,480 It's a specific configuration of rights. 22 00:01:03,680 --> 00:01:05,280 And you're right to highlight the stakes. 23 00:01:05,400 --> 00:01:07,680 This isn't just about roommates splitting the cable bill. 24 00:01:07,680 --> 00:01:10,000 Not at all. This is about what happens when 25 00:01:10,000 --> 00:01:13,240 a business partnership dissolves or a marriage ends. 26 00:01:13,240 --> 00:01:17,040 Or, and this is the most dramatic, when someone that is 27 00:01:17,040 --> 00:01:20,280 when the configuration determines who walks away with 28 00:01:20,280 --> 00:01:23,920 $1,000,000 asset and who walks away with absolutely nothing. 29 00:01:23,920 --> 00:01:26,960 And that's our mission today. We are going to move beyond the 30 00:01:26,960 --> 00:01:31,160 laypersons idea of Co ownership and really dissect the specific 31 00:01:31,160 --> 00:01:34,840 legal architectures, the tendency in common, the joint 32 00:01:34,840 --> 00:01:37,560 tendency and the tendency by the entirety. 33 00:01:37,720 --> 00:01:40,200 And for the law students listening, or you know, the bar 34 00:01:40,200 --> 00:01:42,360 exam candidates, we have a secondary mission, right? 35 00:01:42,600 --> 00:01:45,200 This topic appears disproportionately on exams, and 36 00:01:45,200 --> 00:01:48,400 you have to ask why. It's because it blends those 37 00:01:48,400 --> 00:01:52,720 rigid, formal, almost medieval rules with these modern ideas of 38 00:01:52,720 --> 00:01:54,760 fairness. It creates the perfect storm for 39 00:01:54,760 --> 00:01:56,640 a complex fact pattern. A perfect storm. 40 00:01:56,760 --> 00:01:59,840 So we're going to identify the magic words for creation, the 41 00:01:59,840 --> 00:02:02,680 four unities that sustain them, and maybe most importantly, the 42 00:02:02,680 --> 00:02:04,600 severance traps that destroy them. 43 00:02:04,920 --> 00:02:07,880 OK, let's unpack this. We need to start at the absolute 44 00:02:07,880 --> 00:02:11,720 foundation module one, the foundation and the tendency in 45 00:02:11,720 --> 00:02:14,000 common before we get to the specific types. 46 00:02:14,240 --> 00:02:17,720 What does concurrent ownership actually mean in a legal sense? 47 00:02:17,720 --> 00:02:22,400 So at its simplest, it's when two or more distinct individuals 48 00:02:22,400 --> 00:02:26,280 or entities, and it can be people or corporations, possess 49 00:02:26,280 --> 00:02:30,000 legally recognized interests in the same parcel of land 50 00:02:30,000 --> 00:02:33,040 simultaneously. OK, but here is the concept that 51 00:02:33,040 --> 00:02:36,840 trips everyone up immediately, and it is the hallmark of of all 52 00:02:36,840 --> 00:02:39,960 concurrent estates, the unity of possession. 53 00:02:40,040 --> 00:02:42,760 The unity of possession. This is the concept that I think 54 00:02:42,760 --> 00:02:44,080 breaks people's brains a little bit. 55 00:02:44,080 --> 00:02:46,240 It's not intuitive. It is profoundly 56 00:02:46,240 --> 00:02:48,720 counterintuitive. It means that each co-owner has 57 00:02:48,720 --> 00:02:51,480 an undivided fractional interest in the whole. 58 00:02:51,680 --> 00:02:53,280 Undivided being the operative word there. 59 00:02:53,280 --> 00:02:54,840 That's the one you have to circle and underline. 60 00:02:54,840 --> 00:02:56,680 Exactly. Let's play this out with a vivid 61 00:02:56,680 --> 00:02:58,640 example. Suppose you and I buy a 62 00:02:58,640 --> 00:03:00,840 sprawling 50 room mansion together. 63 00:03:00,840 --> 00:03:02,560 I like this example already. Right. 64 00:03:02,760 --> 00:03:05,880 And I put up 99% of the money and you put up 1%. 65 00:03:06,440 --> 00:03:10,880 Now, common sense and perhaps your sense of fairness would 66 00:03:10,880 --> 00:03:15,000 suggest that I get the 49 rooms, the pool, the kitchen and the 67 00:03:15,000 --> 00:03:18,840 garage and you get, I don't know, the broom closet under the 68 00:03:18,840 --> 00:03:20,400 stairs. That feels fair. 69 00:03:20,520 --> 00:03:22,920 I paid 1%, I get 1% of the space. 70 00:03:22,920 --> 00:03:25,440 My own little broom closet. And under the unity of 71 00:03:25,440 --> 00:03:27,720 possession, that is legally wrong. 72 00:03:28,000 --> 00:03:31,200 Completely wrong. Even with my 1% interest, I have 73 00:03:31,200 --> 00:03:34,280 a legal right to possess and enjoy the entire mansion. 74 00:03:34,280 --> 00:03:37,240 You, with your 99% interest, have a right to possess and 75 00:03:37,240 --> 00:03:39,640 enjoy the entire mansion. So you can't draw a line on the 76 00:03:39,640 --> 00:03:40,480 floor. No lines. 77 00:03:40,480 --> 00:03:43,040 There are no his side or sidelines drawn in the deed. 78 00:03:43,600 --> 00:03:46,160 We are both in the old language, seized of the whole. 79 00:03:46,200 --> 00:03:49,200 So practically speaking, I can walk into the master bedroom, 80 00:03:49,360 --> 00:03:52,960 sit on the bed and say I own an interest in every molecule of 81 00:03:52,960 --> 00:03:54,720 this room, so I have a right to be here. 82 00:03:54,720 --> 00:03:57,240 Technically, yes. In the absence of a private 83 00:03:57,240 --> 00:03:59,760 agreement to the contrary, a contract between us, you have 84 00:03:59,760 --> 00:04:01,480 the right to be everywhere on that property. 85 00:04:01,480 --> 00:04:04,440 Now, obviously in the real world, people make agreements. 86 00:04:04,440 --> 00:04:06,280 Sure, I'll take the upstairs, you take the downstairs. 87 00:04:06,480 --> 00:04:08,720 Exactly. But those are private contracts. 88 00:04:08,720 --> 00:04:12,160 That's contract law as far as property law is concerned. 89 00:04:12,520 --> 00:04:16,600 Until we petition the land, we both own the whole thing. 90 00:04:16,600 --> 00:04:19,040 Which sounds like a recipe for absolute chaos. 91 00:04:19,160 --> 00:04:21,640 It often is. I mean it's a forced association 92 00:04:21,640 --> 00:04:25,120 that relies on Co-op mission. When that cooperation fails, the 93 00:04:25,120 --> 00:04:28,800 law has to step in, which is why we have partition rules. 94 00:04:28,920 --> 00:04:31,120 The exit strategy. Right, the exit strategy, but 95 00:04:31,120 --> 00:04:33,920 we'll get to that later. First we have to understand the 96 00:04:33,920 --> 00:04:35,480 default entry point. Right. 97 00:04:35,480 --> 00:04:37,400 So let's talk about that default setting. 98 00:04:37,400 --> 00:04:41,400 If I just write AD that says to A&B and I don't say anything 99 00:04:41,400 --> 00:04:42,840 else. I don't mention survivorship, I 100 00:04:42,840 --> 00:04:44,720 don't mention marriage. It's just to A&B. 101 00:04:45,080 --> 00:04:47,480 What do we have? You have a tendency in common or 102 00:04:47,480 --> 00:04:49,520 a tick. This is the default estate in 103 00:04:49,520 --> 00:04:52,360 American law. If a conveyance is silent or 104 00:04:52,360 --> 00:04:55,000 ambiguous, the law presumes a tendency in common. 105 00:04:55,000 --> 00:04:58,080 And why is that the presumption? Why doesn't the law assume we 106 00:04:58,080 --> 00:05:00,920 wanted the stronger bond, like a joint tendency? 107 00:05:00,920 --> 00:05:02,560 It's a very deliberate policy choice. 108 00:05:03,080 --> 00:05:05,680 The law as a general rule disfavors the right of 109 00:05:05,680 --> 00:05:08,280 survivorship, which is the key feature of joint tenancy. 110 00:05:08,360 --> 00:05:10,640 And we'll get into that more, but survivorship is basically 111 00:05:10,640 --> 00:05:12,720 the winner take all feature. Exactly. 112 00:05:12,760 --> 00:05:15,440 It's a gamble. It means if I die, you get my 113 00:05:15,440 --> 00:05:18,040 share and my heirs get nothing. My children get nothing. 114 00:05:18,040 --> 00:05:21,760 My will is useless. The legal system has a very 115 00:05:21,760 --> 00:05:24,960 strong preference for allowing wealth to pass down through 116 00:05:24,960 --> 00:05:26,840 family lines through inheritance. 117 00:05:26,840 --> 00:05:28,000 It wants to protect the heirs it. 118 00:05:28,000 --> 00:05:31,880 Wants to protect the heirs, so to do that we default to the 119 00:05:31,880 --> 00:05:34,720 tendency in common where there is no survivorship. 120 00:05:34,840 --> 00:05:37,800 OK, so let's really break down the key characteristics of this 121 00:05:37,800 --> 00:05:40,480 T thick. What are the three things a 122 00:05:40,480 --> 00:05:42,080 student has to have in their notes? 123 00:05:42,440 --> 00:05:45,760 1st and most importantly as we just said, no right of 124 00:05:45,760 --> 00:05:48,720 survivorship. If a tenant in common dies, 125 00:05:48,840 --> 00:05:52,440 their share goes to their heirs via their will, or if they have 126 00:05:52,440 --> 00:05:55,800 no will through the state's intestacy rules, it does not go 127 00:05:55,800 --> 00:05:59,000 to the other Co owners. So my share goes to my kids, not 128 00:05:59,000 --> 00:06:01,160 to you. Correct second characteristic. 129 00:06:01,160 --> 00:06:03,360 Transferability. Transferability interests are 130 00:06:03,360 --> 00:06:06,280 freely alienable, devisable and inheritable. 131 00:06:06,560 --> 00:06:08,840 You can sell your share to a stranger without asking the 132 00:06:08,880 --> 00:06:10,960 other Co owners. You can leave it in your will. 133 00:06:11,000 --> 00:06:13,720 You can give it away. Going back to our mansion, if I 134 00:06:13,720 --> 00:06:17,680 get sick of living with you and I own 99%, I can just sell my 135 00:06:17,680 --> 00:06:22,200 99% to a punk rock band that needs rehearsal space without 136 00:06:22,200 --> 00:06:23,920 your permission. You absolutely can. 137 00:06:23,920 --> 00:06:26,120 You don't need my permission. You don't even need to notify me 138 00:06:26,120 --> 00:06:28,560 until it's done. You just sign a deed and now I 139 00:06:28,560 --> 00:06:30,720 have a new roommate. And now I'm roommates with a 140 00:06:30,720 --> 00:06:33,200 punk rock band. Exactly the new owner. 141 00:06:33,200 --> 00:06:36,600 The band simply steps into the shoes of the seller, They take 142 00:06:36,600 --> 00:06:40,040 your 99% undivided interest and they now have the unity of 143 00:06:40,040 --> 00:06:41,840 possession regarding the whole house. 144 00:06:42,080 --> 00:06:43,720 They can set up their drum kit in the living. 145 00:06:43,720 --> 00:06:44,520 Room. Wow. 146 00:06:44,720 --> 00:06:46,240 OK. And the third characteristic. 147 00:06:46,240 --> 00:06:50,320 Unequal interests This is a key distinction from joint tenancy. 148 00:06:50,680 --> 00:06:56,560 Tux shares can be unequal 991752560405050 It's very 149 00:06:56,560 --> 00:06:59,200 flexible. The deed can specify the shares, 150 00:06:59,200 --> 00:07:01,920 or if it's silent, courts will usually presume equal shares, 151 00:07:01,920 --> 00:07:04,920 but they don't have to be. Got it before we move on to the 152 00:07:04,920 --> 00:07:07,040 next estate. I saw a weird term in the 153 00:07:07,040 --> 00:07:10,360 Marquette source Coparsony. It sounds like something from a 154 00:07:10,360 --> 00:07:12,280 history book. It essentially is a fossil. 155 00:07:12,280 --> 00:07:15,560 Coparsony is an extinct dinosaur of the common law. 156 00:07:16,000 --> 00:07:18,640 It's a fun bit of trivia, but you won't see it in modern 157 00:07:18,640 --> 00:07:20,200 practice. So what was it? 158 00:07:20,320 --> 00:07:23,200 It dates back to the system of primogeniture where the eldest 159 00:07:23,200 --> 00:07:26,600 son inherited everything, but the law had a problem. 160 00:07:27,240 --> 00:07:30,120 What if a landowner died and had only daughters? 161 00:07:30,120 --> 00:07:32,640 No sons to take the title. Exactly. 162 00:07:33,040 --> 00:07:35,320 The law didn't want to choose just one daughter, and it 163 00:07:35,320 --> 00:07:37,800 couldn't divide the land physically sometimes, so the 164 00:07:37,800 --> 00:07:40,400 daughters would take the land together as Co parceners. 165 00:07:40,720 --> 00:07:43,280 It was this unique estate because it arose from 166 00:07:43,280 --> 00:07:46,080 inheritance from dissent, not from a deed. 167 00:07:46,080 --> 00:07:48,240 So it was an inherited group ownership for women. 168 00:07:48,440 --> 00:07:52,280 Pretty much, but today it's been effectively absorbed into 169 00:07:52,280 --> 00:07:55,440 tendency in common. Modern intestacy statutes just 170 00:07:55,440 --> 00:07:58,240 handle this now. So if a student sees Caparsney 171 00:07:58,360 --> 00:08:01,000 on an exam. It's likely a distractor, a 172 00:08:01,000 --> 00:08:02,920 trick, or a deep history question. 173 00:08:03,200 --> 00:08:05,800 You should know what it was, but for all practical purposes just 174 00:08:05,800 --> 00:08:07,320 treat it as a tendency in common. 175 00:08:07,320 --> 00:08:08,920 It's a historical footnote. Got it. 176 00:08:09,000 --> 00:08:11,320 RIP Caparsney. Now let's move to the main event 177 00:08:11,720 --> 00:08:16,560 Module 2, the joint tendency. This seems to be where the drama 178 00:08:16,560 --> 00:08:19,000 really happens. This is the exam favorite, the 179 00:08:19,000 --> 00:08:23,400 joint tenancy or JT and it's defining all important feature 180 00:08:23,400 --> 00:08:26,480 is the right of survivorship. The sources describe this as a 181 00:08:26,480 --> 00:08:28,760 vanishing act. I like that imagery. 182 00:08:28,800 --> 00:08:32,559 That's a perfect visual. Imagine two people A&B own a 183 00:08:32,559 --> 00:08:36,080 house as joint tenants. When A dies, A's interest 184 00:08:36,080 --> 00:08:39,039 essentially evaporates. It disappears into thin air. 185 00:08:39,640 --> 00:08:42,200 B doesn't inherit it in the traditional sense. 186 00:08:42,440 --> 00:08:45,640 B's existing interest just expands to exhort the whole. 187 00:08:45,880 --> 00:08:48,520 B becomes the sole owner of what's left. 188 00:08:48,520 --> 00:08:52,560 So A's interest is just gone, it doesn't pass to their estate. 189 00:08:52,560 --> 00:08:54,600 Gone. It avoids probate because there 190 00:08:54,600 --> 00:08:56,120 is nothing to pass through the estate. 191 00:08:56,360 --> 00:09:00,320 The interest ceases to exist the moment A dies, and this leads to 192 00:09:00,320 --> 00:09:01,840 what we call the grandmother's trap. 193 00:09:02,280 --> 00:09:04,480 Yes, this is crucial for anyone listening. 194 00:09:04,880 --> 00:09:07,360 A will cannot override a joint pendency. 195 00:09:07,600 --> 00:09:09,400 It is legally powerless against it. 196 00:09:09,520 --> 00:09:11,000 Wait, really? Let's role play this for a 197 00:09:11,000 --> 00:09:12,200 second because this is so important. 198 00:09:12,480 --> 00:09:15,280 Say grandma owns a house with her second husband as joint 199 00:09:15,280 --> 00:09:19,960 tenants, but she hates him. Now she writes A valid will, 200 00:09:19,960 --> 00:09:22,920 saying I leave my 1/2 share of the house to my beloved 201 00:09:22,920 --> 00:09:24,800 granddaughter. She signs it. 202 00:09:24,840 --> 00:09:26,720 It's notarized. She puts it in the safe. 203 00:09:26,920 --> 00:09:30,040 She's done everything right. It doesn't matter, not one bit. 204 00:09:30,360 --> 00:09:34,000 The moment grandma dies, the survivorship right kicks in 205 00:09:34,000 --> 00:09:36,600 instantly. It happens by operation of law. 206 00:09:36,800 --> 00:09:40,240 It's an automatic legal reflex. It moves faster than the probate 207 00:09:40,240 --> 00:09:41,680 of the will. So the husband gets the whole 208 00:09:41,680 --> 00:09:42,960 house. The husband gets the whole 209 00:09:42,960 --> 00:09:47,080 house, the granddaughter gets a heartfelt letter and 0 property. 210 00:09:47,160 --> 00:09:49,480 That is terrifying. The will is just a piece of 211 00:09:49,480 --> 00:09:51,200 paper. Regarding that specific 212 00:09:51,200 --> 00:09:54,440 property, yes, the will is ineffective because at the 213 00:09:54,440 --> 00:09:57,120 moment of death, Grandma's interest vanished. 214 00:09:57,640 --> 00:09:59,480 There was nothing left for the will to give away. 215 00:09:59,840 --> 00:10:02,600 The subject of the gift ceased to exist. 216 00:10:02,720 --> 00:10:05,760 So how do we spot this joint tenancy? 217 00:10:05,760 --> 00:10:07,680 How do we create one? I know there's a mnemonic 218 00:10:07,680 --> 00:10:08,880 involved here. There is. 219 00:10:09,120 --> 00:10:11,400 This is pure common law formalism. 220 00:10:11,640 --> 00:10:14,120 To create a joint tendency at common law, you need the four 221 00:10:14,120 --> 00:10:16,480 unities. The mnemonic is TTIP. 222 00:10:16,600 --> 00:10:19,000 TTIP. OK, let's walk through TTIP 223 00:10:19,000 --> 00:10:21,680 slowly because this is where a lot of points are won or lost on 224 00:10:21,680 --> 00:10:22,760 an exam. Absolutely. 225 00:10:22,760 --> 00:10:26,440 So the first T is for time. All joint tenants must acquire 226 00:10:26,440 --> 00:10:28,200 their interests at the exact same moment. 227 00:10:28,360 --> 00:10:31,040 You can't have one person get title in 2020 and the other in 228 00:10:31,040 --> 00:10:33,320 2024 and call it a joint tendency. 229 00:10:33,560 --> 00:10:35,680 OK, time. What's the second T? 230 00:10:35,880 --> 00:10:39,640 The second T is for title. All interests must be acquired 231 00:10:39,640 --> 00:10:42,280 via the same instrument, the same deed, or the same will. 232 00:10:42,640 --> 00:10:45,000 You can't have one person get their interest from deed A and 233 00:10:45,120 --> 00:10:46,920 another from deed B. Got it. 234 00:10:47,160 --> 00:10:49,240 Same moment, same document. What's the I? 235 00:10:49,600 --> 00:10:52,880 I is for interest. The shares must be equal. 236 00:10:53,120 --> 00:10:57,280 You can't have a 7525 joint tenancy, it has to be 5050. 237 00:10:57,440 --> 00:11:00,520 Or if there are three people, 1/3 each, they have to be equal 238 00:11:00,520 --> 00:11:02,960 in size and in duration. And finally, P. 239 00:11:03,240 --> 00:11:07,200 And P is for possession, which is the right to possess the 240 00:11:07,200 --> 00:11:09,840 whole. It's the one unity that all 241 00:11:09,840 --> 00:11:13,320 concurrent estates share. So time, title, interest, 242 00:11:13,320 --> 00:11:16,520 possession, if any of those are missing at the time of creation. 243 00:11:16,520 --> 00:11:18,440 Then it fails. It's not a joint tendency. 244 00:11:18,440 --> 00:11:20,800 The whole thing collapses and it defaults right back to a 245 00:11:20,800 --> 00:11:22,120 tendency in common. OK. 246 00:11:22,120 --> 00:11:24,360 But even if you have the unities, you need the magic 247 00:11:24,360 --> 00:11:27,560 words, right, because of that presumption against survivorship 248 00:11:27,560 --> 00:11:28,920 that we talked about. Precisely. 249 00:11:29,000 --> 00:11:31,520 You cannot be vague. The law is hostile to 250 00:11:31,520 --> 00:11:34,080 survivorship, so you have to be crystal clear that you intend to 251 00:11:34,080 --> 00:11:37,080 create it. If a deed just says to A&B 252 00:11:37,080 --> 00:11:39,160 gently, that is often not enough. 253 00:11:39,440 --> 00:11:43,280 Why not jointly? Sounds pretty clear. 254 00:11:43,560 --> 00:11:47,760 A court might read jointly to just mean together and to 255 00:11:47,760 --> 00:11:50,000 protect the errors. They'll call it a tendency in 256 00:11:50,000 --> 00:11:54,120 common to be safe and to get full credit on an exam. 257 00:11:54,360 --> 00:11:59,320 You look for the magic words to A&B as joint tenants with right 258 00:11:59,320 --> 00:12:02,400 of survivorship. You have to explicitly mention 259 00:12:02,400 --> 00:12:04,320 survivorship. You have to call it out. 260 00:12:04,440 --> 00:12:07,720 Some stance might even add and not as tenants in common. 261 00:12:07,720 --> 00:12:10,720 You have to overcome that strong legal presumption. 262 00:12:10,920 --> 00:12:13,800 Now I read about something called the straw man regarding 263 00:12:13,800 --> 00:12:15,920 the unities. This sounds like a workaround 264 00:12:15,920 --> 00:12:18,320 for when you mess up the time and title part. 265 00:12:18,440 --> 00:12:21,400 It's an old, clever, and very formalistic workaround. 266 00:12:21,960 --> 00:12:24,440 Here's the classic scenario. Let's say you own a house 267 00:12:24,440 --> 00:12:25,920 already. You own it 100%. 268 00:12:25,920 --> 00:12:28,560 We'll call you A. You get married and you want to 269 00:12:28,560 --> 00:12:30,400 add your spouse B as a joint tenant. 270 00:12:30,440 --> 00:12:33,600 OK, so I want to go from owning it alone to owning it with my 271 00:12:33,600 --> 00:12:37,000 spouse, right? So if you just write a deed from 272 00:12:37,040 --> 00:12:40,480 A to A&B as joint tenants, you've broken the unities. 273 00:12:40,640 --> 00:12:43,320 Well, A had their interest from 10 years ago and B is getting 274 00:12:43,320 --> 00:12:46,240 theirs today. No unity of time, and A is 275 00:12:46,240 --> 00:12:48,640 conveying from himself while B is receiving. 276 00:12:48,760 --> 00:12:51,080 So you could argue there's no unity of title from the same 277 00:12:51,080 --> 00:12:52,600 source. The whole thing fails. 278 00:12:52,600 --> 00:12:54,640 It becomes a tenancy in common. Exactly. 279 00:12:55,240 --> 00:12:57,960 So the old common law fix was the straw man. 280 00:12:58,240 --> 00:13:01,480 You would deed the house to a third party, your lawyer, a 281 00:13:01,480 --> 00:13:05,120 friend, anyone. The straw man, then the straw 282 00:13:05,120 --> 00:13:08,440 man would immediately, in a second transaction, deed it back 283 00:13:08,440 --> 00:13:10,600 to you and spouse as joint tenants. 284 00:13:10,880 --> 00:13:13,080 So you reset the clock. You reset the clock. 285 00:13:13,360 --> 00:13:16,200 Now both of you received title at the same time from the same 286 00:13:16,200 --> 00:13:19,800 document, the straw man's deed. The four unities are satisfied. 287 00:13:19,800 --> 00:13:22,160 It's pure legal fiction, but it worked. 288 00:13:22,680 --> 00:13:25,600 And modern trends, do we still need to do this? 289 00:13:25,840 --> 00:13:28,800 In many states, no many statutes have been passed that 290 00:13:28,800 --> 00:13:31,080 specifically abolish the need for a straw man. 291 00:13:31,240 --> 00:13:34,800 They allow a direct conveyance from A to A&B to create a joint 292 00:13:34,800 --> 00:13:37,360 tenancy. But on an exam, you need to know 293 00:13:37,360 --> 00:13:41,240 why the straw man existed to satisfy the rigorous 4 unities 294 00:13:41,240 --> 00:13:42,480 of the common law. OK. 295 00:13:42,480 --> 00:13:43,920 So we've built the joint tenancy. 296 00:13:44,160 --> 00:13:49,120 We have our TTIP, we have our survivorship now Module 3, how 297 00:13:49,120 --> 00:13:51,240 do we destroy it? This is severance. 298 00:13:51,880 --> 00:13:54,800 Fragile is the word you always see used to describe the joint 299 00:13:54,800 --> 00:13:56,600 tendency. And it's true. 300 00:13:56,720 --> 00:14:00,360 It is very easy to break to sever, and once you sever it, 301 00:14:00,360 --> 00:14:02,680 you break one of the unities. The survivorship is gone 302 00:14:02,680 --> 00:14:05,640 forever, and you're left holding a tendency in common. 303 00:14:05,840 --> 00:14:07,320 What's the most common way to break it? 304 00:14:07,840 --> 00:14:11,800 The easiest and most common is an inter vivos conveyance, A 305 00:14:11,800 --> 00:14:16,000 sale during your lifetime. If A&B are joint tenants and A 306 00:14:16,000 --> 00:14:20,920 sells for 1/2 share to C, the unities of time and title are 307 00:14:21,040 --> 00:14:22,960 instantly broken. For everyone. 308 00:14:23,040 --> 00:14:26,000 For CC got their title at a different time and from a 309 00:14:26,000 --> 00:14:29,080 different instrument than B did, so C is now a tenant in common 310 00:14:29,080 --> 00:14:31,160 with B. The survivorship feature between 311 00:14:31,160 --> 00:14:33,520 them is destroyed. And B didn't have to agree to 312 00:14:33,520 --> 00:14:34,960 that. A can just do it. 313 00:14:34,960 --> 00:14:37,880 No consent needed. Severance can be unilateral and 314 00:14:37,880 --> 00:14:40,640 often it can be secret. B might not even know about the 315 00:14:40,640 --> 00:14:43,640 sale until A dies and suddenly C shows up at the funeral saying, 316 00:14:43,640 --> 00:14:45,600 by the way, I own half the house now. 317 00:14:45,680 --> 00:14:47,840 That's a brutal surprise it. Is. 318 00:14:47,960 --> 00:14:50,680 It's complicated. This is a classic exam pattern. 319 00:14:51,120 --> 00:14:55,480 What if there are three people? AB and C are joint tenants, each 320 00:14:55,480 --> 00:14:58,960 with a 1/3 interest. A sells their share to D. 321 00:14:59,040 --> 00:15:01,320 What happens now? OK, this is a great question. 322 00:15:01,320 --> 00:15:05,520 It's called partial severance. A selling to D severs the joint 323 00:15:05,520 --> 00:15:07,720 tenancy only as to that one third share. 324 00:15:07,920 --> 00:15:11,600 So D comes in as a tenant in common holding a 1/3 interest. 325 00:15:12,000 --> 00:15:14,840 D has no survivorship rights. OK. 326 00:15:14,840 --> 00:15:18,240 So D is AT tie with B&C. What about B&C? 327 00:15:18,320 --> 00:15:21,600 Well, B&C, they haven't done anything to break their unities 328 00:15:21,600 --> 00:15:23,840 with each other. They still have the same time, 329 00:15:23,840 --> 00:15:28,560 title and interest relative to one another, so B&C remain joint 330 00:15:28,560 --> 00:15:31,200 tenants with each other for their combined 2/3 share. 331 00:15:31,480 --> 00:15:34,920 So B dies tomorrow. C gets B's share via 332 00:15:34,920 --> 00:15:37,640 survivorship. Now C owns 2/3 of the property 333 00:15:37,640 --> 00:15:40,040 and D owns 1/3, and they are tenants in common. 334 00:15:40,200 --> 00:15:43,000 That is wild. The estate kind of splits into 335 00:15:43,000 --> 00:15:45,520 two different types of ownership existing at the same time. 336 00:15:45,520 --> 00:15:46,760 Exactly. It's a hybrid. 337 00:15:46,920 --> 00:15:49,240 OK, another way to sever is the contract for sale. 338 00:15:49,480 --> 00:15:51,000 This seems less obvious. Right. 339 00:15:51,400 --> 00:15:54,320 This relies on the doctrine of equitable conversion. 340 00:15:54,880 --> 00:15:59,320 The idea here is that equity regards as done that which ought 341 00:15:59,320 --> 00:16:03,480 to be done, meaning meaning in many states, the moment you sign 342 00:16:03,520 --> 00:16:07,680 a binding contract to sell your share, even before the closing, 343 00:16:07,680 --> 00:16:11,240 before the deed is handed over, equity regards the title as 344 00:16:11,240 --> 00:16:13,240 already having been transferred to the buyer. 345 00:16:13,320 --> 00:16:16,080 So the unity of title is effectively broken at the 346 00:16:16,080 --> 00:16:17,440 contract signing. Correct. 347 00:16:17,600 --> 00:16:20,680 The joint tenancy is severed then and there, even if the deal 348 00:16:20,680 --> 00:16:23,280 falls through later. Now here's where it gets really 349 00:16:23,280 --> 00:16:26,640 interesting and frankly, confused Using the mortgage. 350 00:16:27,360 --> 00:16:29,760 This seems to depend entirely on where you were standing. 351 00:16:29,760 --> 00:16:32,600 It does. This is a classic jurisdictional 352 00:16:32,600 --> 00:16:34,840 split that you absolutely have to know for an exam. 353 00:16:35,240 --> 00:16:38,600 It depends on whether you are in a title theory state or a lien 354 00:16:38,600 --> 00:16:40,320 theory state. OK, break that down for us. 355 00:16:40,320 --> 00:16:43,000 What's title theory? Title theory is the older 356 00:16:43,000 --> 00:16:46,000 minority view today. In these jurisdictions, granting 357 00:16:46,000 --> 00:16:49,680 a mortgage is seen as literally transferring the title to the 358 00:16:49,680 --> 00:16:51,400 bank. You are giving the bank the 359 00:16:51,400 --> 00:16:54,080 legal title and you're just keeping an equity of redemption. 360 00:16:54,080 --> 00:16:56,640 The right to get the title back when you pay off the loan. 361 00:16:56,760 --> 00:16:58,600 So if title is transferred to the bank. 362 00:16:58,640 --> 00:17:02,400 The unity of title is broken the moment one joint tenant takes 363 00:17:02,400 --> 00:17:04,280 out a mortgage. In a title theory state, the 364 00:17:04,280 --> 00:17:06,440 joint tenancy is severed. Boom. 365 00:17:06,680 --> 00:17:09,240 It becomes a tendency in common. Even if they pay it off the next 366 00:17:09,240 --> 00:17:10,960 day. Even if they pay it off, the 367 00:17:10,960 --> 00:17:14,720 severance is permanent. And in lien theory, which is the 368 00:17:14,720 --> 00:17:17,359 majority rule? In a lien theory state, a 369 00:17:17,359 --> 00:17:20,359 mortgage is just a lien. It's a security interest. 370 00:17:20,640 --> 00:17:24,079 It's a cloud on the title, but it doesn't transfer the actual 371 00:17:24,079 --> 00:17:27,839 title itself. So since title hasn't moved, the 372 00:17:27,839 --> 00:17:30,880 unities remain intact. So taking out a mortgage does 373 00:17:30,880 --> 00:17:33,080 not sever the joint tenancy, correct? 374 00:17:33,240 --> 00:17:35,760 It doesn't. Now things can get weird if that 375 00:17:35,760 --> 00:17:39,280 person dies before paying it off, but the act of mortgaging 376 00:17:39,280 --> 00:17:42,480 itself does not sever. Wait, I saw a note about Georgia 377 00:17:42,480 --> 00:17:45,320 and the source material. It's a lean theory state but it 378 00:17:45,320 --> 00:17:47,880 does something unique. It mentioned a life estate 379 00:17:47,880 --> 00:17:51,760 concept with mortgages. Yes, Georgia is a fascinating 380 00:17:51,760 --> 00:17:55,000 specific case and it highlights just how nuanced this can and 381 00:17:55,000 --> 00:17:57,680 get. So Georgia is a lean theory 382 00:17:57,680 --> 00:18:01,320 state, which means the mortgage does not sever the tenancy. 383 00:18:01,880 --> 00:18:04,800 However, the mortgage essentially attaches only to 384 00:18:04,800 --> 00:18:08,240 that tenants life estate and their contingent remainder. 385 00:18:08,240 --> 00:18:10,280 OK, translate that for us. What does that mean for the 386 00:18:10,280 --> 00:18:12,200 bank? It means the bank is taking a 387 00:18:12,200 --> 00:18:16,640 huge gamble if the tenant who took out the loan, the debtor 388 00:18:16,920 --> 00:18:19,640 dies first. The other tenant gets the 389 00:18:19,640 --> 00:18:22,400 property via survivorship, free and clear of the mortgage. 390 00:18:22,400 --> 00:18:25,680 The mortgage just disappears. It vanishes along with the 391 00:18:25,680 --> 00:18:28,600 debtors interest. The bank loses its security 392 00:18:28,600 --> 00:18:32,160 because the property interest it was attached to evaporated. 393 00:18:32,480 --> 00:18:34,760 This is the concept of non exoneration. 394 00:18:34,960 --> 00:18:37,640 The surviving tenant takes the property and does not have to 395 00:18:37,640 --> 00:18:41,560 pay off the dead tenants debt. That's an incredibly risky loan 396 00:18:41,560 --> 00:18:44,400 for a bank in Georgia to make on a joint tenancy property then. 397 00:18:44,520 --> 00:18:46,880 Extremely. But on the other hand, if the 398 00:18:46,880 --> 00:18:49,480 debtor tenant outlives the other tenant and becomes the sole 399 00:18:49,480 --> 00:18:52,480 owner, then the bank's mortgage suddenly attaches to the full 400 00:18:52,480 --> 00:18:54,880 fee simple ownership. It's an all or nothing bet for 401 00:18:54,880 --> 00:18:56,840 the lender. Let's talk about this secret 402 00:18:56,840 --> 00:18:59,320 severance. This feels like the plot of a 403 00:18:59,320 --> 00:19:02,560 legal thriller. The safe deposit box case 404 00:19:02,560 --> 00:19:03,960 mentioned in the Marquette article. 405 00:19:04,160 --> 00:19:07,080 This is based on real litigation and it's a perfect example of 406 00:19:07,080 --> 00:19:09,200 someone trying to manipulate these old rules. 407 00:19:09,680 --> 00:19:12,400 Imagine a joint tenant who wants to have it both ways. 408 00:19:12,680 --> 00:19:16,000 He wants to sever the tendency so his heirs get his share if he 409 00:19:16,000 --> 00:19:17,960 dies. So he wants to break the 410 00:19:17,960 --> 00:19:21,600 survivorship for his own death. Right, But he also wants to keep 411 00:19:21,600 --> 00:19:23,880 the survivorship right? In case the other tenant dies 412 00:19:23,880 --> 00:19:26,480 first so he can take everything. He wants to have his cake and 413 00:19:26,480 --> 00:19:27,680 eat it too. Exactly. 414 00:19:27,680 --> 00:19:31,400 So he executes A deed to himself or to a straw man with the 415 00:19:31,400 --> 00:19:34,920 intent to sever the tendency, but he doesn't record it, He 416 00:19:34,920 --> 00:19:37,200 doesn't tell anyone. He just hides it in the safe 417 00:19:37,200 --> 00:19:38,600 deposit box. What's the plan? 418 00:19:39,160 --> 00:19:42,400 If he dies first, his heirs find the deed and say look, 419 00:19:42,600 --> 00:19:46,160 severance, we inherit his half. But if the other tenant dies 420 00:19:46,160 --> 00:19:49,720 first, he quietly takes the deed out-of-the-box, tears it up and 421 00:19:49,720 --> 00:19:52,200 says look, we were joint tenants. 422 00:19:52,320 --> 00:19:54,160 I get everything by survivorship. 423 00:19:54,280 --> 00:19:56,600 Is that legal? It sounds like fraud. 424 00:19:56,760 --> 00:19:59,760 Courts hate it, it's basically a fraud on the other tenants 425 00:19:59,760 --> 00:20:02,920 survivorship rights. But it brings up a huge legal 426 00:20:02,920 --> 00:20:06,760 question about self conveyance. Can you deed property from 427 00:20:06,760 --> 00:20:10,560 yourself to yourself? To break a joint tendency. 428 00:20:10,720 --> 00:20:13,440 We have a case on this in the stack in re State of Grant from 429 00:20:13,440 --> 00:20:16,200 the Pennsylvania Supreme Court. This seems to tackle that 430 00:20:16,200 --> 00:20:19,440 question head on, yes. This is a very recent and 431 00:20:19,440 --> 00:20:22,240 critical case. In Grant, a mother tried to 432 00:20:22,240 --> 00:20:25,760 sever a giant tendency she held with her son by executing a 433 00:20:25,760 --> 00:20:28,960 quick claim deed from herself to herself. 434 00:20:29,200 --> 00:20:31,200 Just to be clear, a unilateral act. 435 00:20:31,320 --> 00:20:33,840 From me to me. No straw man, no third party. 436 00:20:33,960 --> 00:20:35,120 Right. And she recorded it. 437 00:20:35,120 --> 00:20:37,920 And the Pennsylvania Supreme Court said, no, it didn't work, 438 00:20:37,920 --> 00:20:39,840 The severance was invalid. Why not? 439 00:20:39,920 --> 00:20:42,760 Her intent was crystal clear. She wrote it down and recorded. 440 00:20:42,760 --> 00:20:46,120 It Pennsylvania took a very old school formalist view. 441 00:20:46,200 --> 00:20:48,640 They looked at the four unities. They said if I deed property to 442 00:20:48,640 --> 00:20:50,680 myself, have I changed the time? No. 443 00:20:50,680 --> 00:20:52,600 The title, no. The interest or possession? 444 00:20:52,600 --> 00:20:54,120 No. Nothing has actually changed 445 00:20:54,120 --> 00:20:56,000 hands. The unities weren't broken. 446 00:20:56,000 --> 00:20:57,760 So no broken unity, no severance. 447 00:20:58,080 --> 00:21:00,600 That was their first argument. Their second was that for a 448 00:21:00,600 --> 00:21:03,880 severance to be valid, the ACT must be irrevocable. 449 00:21:03,880 --> 00:21:07,640 You must be unable to retreat. If you just hold a deed to 450 00:21:07,640 --> 00:21:09,160 yourself, you can always tear it up. 451 00:21:09,360 --> 00:21:11,600 You haven't really committed to the act of transfer. 452 00:21:12,120 --> 00:21:15,920 So in PA and jurisdictions like it, you still need a third 453 00:21:15,920 --> 00:21:19,920 party, a straw man, or you have to sell to someone else to sever 454 00:21:19,960 --> 00:21:22,480 if you're doing it unilaterally. That's what the court said. 455 00:21:22,480 --> 00:21:25,360 You can't just talk to yourself on paper, but you have to note 456 00:21:25,360 --> 00:21:29,120 that other jurisdictions take a more modern intent tent focused 457 00:21:29,120 --> 00:21:32,040 view and might allow it. This is a classic jurisdictional 458 00:21:32,040 --> 00:21:34,640 split that is perfect for an exam question. 459 00:21:34,640 --> 00:21:37,040 OK. Moving on to Module 4, we've 460 00:21:37,040 --> 00:21:40,400 done typic, we've done JT. Now the fortress tenancy by the 461 00:21:40,400 --> 00:21:43,080 entirety or TBE. The marital fortress. 462 00:21:43,320 --> 00:21:46,600 This is a specialized form of joint tendency available only to 463 00:21:46,600 --> 00:21:49,280 married couples, and it's important to know it only exists 464 00:21:49,280 --> 00:21:53,040 in about half the states. So it has the four unities, TDIP 465 00:21:53,040 --> 00:21:56,600 plus one more. The 5th unity marriage and the 466 00:21:56,600 --> 00:21:59,560 law is very strict about this. You must be legally married at 467 00:21:59,560 --> 00:22:02,720 the time of the conveyance. What if a couple is engaged and 468 00:22:02,720 --> 00:22:06,560 they buy a house as tenants by the entirety a week before the 469 00:22:06,560 --> 00:22:07,680 wedding? It fails. 470 00:22:07,960 --> 00:22:10,800 It's not a TBE. Depending on the state's law and 471 00:22:10,800 --> 00:22:13,480 the language and the deed, it becomes either a tech or a 472 00:22:13,480 --> 00:22:17,320 standard joint tenancy. The unity of marriage must exist 473 00:22:17,320 --> 00:22:19,680 at the exact moment the deed is signed. 474 00:22:19,680 --> 00:22:21,520 What makes it a fortress? What's special about? 475 00:22:21,520 --> 00:22:25,600 It the protections are immense. In a regular joint tendency, one 476 00:22:25,600 --> 00:22:28,520 person can sever it unilaterally by selling their share. 477 00:22:28,640 --> 00:22:31,600 In TBE, there is no unilateral severance. 478 00:22:32,120 --> 00:22:35,880 One spouse cannot sell, mortgage or transfer their share without 479 00:22:35,880 --> 00:22:37,640 the other spouses express consent. 480 00:22:37,640 --> 00:22:39,640 So you are locked in together. You are locked in. 481 00:22:39,640 --> 00:22:42,680 One spouse can't secretly sell their half and leave the other 482 00:22:42,680 --> 00:22:44,840 one with a new roommate. And the creditor protection. 483 00:22:45,000 --> 00:22:46,280 This seems to be the biggest feature. 484 00:22:46,280 --> 00:22:50,360 This is the big one, the shield. In most TBE jurisdictions, a 485 00:22:50,360 --> 00:22:53,400 creditor of only one spice cannot touch the property. 486 00:22:53,520 --> 00:22:56,080 Give us an example. Sure, the husband is a Doctor 487 00:22:56,080 --> 00:22:59,320 Who gets sued for malpractice for a huge amount, or the wife 488 00:22:59,320 --> 00:23:01,320 runs up massive gambling debts on her own. 489 00:23:02,040 --> 00:23:04,440 The creditors for those individual debts cannot seize 490 00:23:04,440 --> 00:23:07,600 the house if it's held in TVE. They can't force a sale. 491 00:23:07,680 --> 00:23:09,960 They can't touch it. They can only attach the 492 00:23:09,960 --> 00:23:13,920 property for joint debts, a mortgage both spouses signed, a 493 00:23:13,920 --> 00:23:17,840 car loan they took out together. It's an incredibly powerful 494 00:23:17,840 --> 00:23:20,320 asset protection tool. That is powerful. 495 00:23:20,320 --> 00:23:22,800 I read in the Marquette article that some legal scholars think 496 00:23:22,800 --> 00:23:25,920 this is unfair or anachronistic. Oh absolutely. 497 00:23:25,920 --> 00:23:29,000 The article calls it an anachronism and it raises really 498 00:23:29,000 --> 00:23:33,000 good policy question. Why should a married couple get 499 00:23:33,000 --> 00:23:36,760 to shield their primary asset from legitimate creditors while 500 00:23:36,760 --> 00:23:39,840 two sisters who have lived together for 40 years or a 501 00:23:39,840 --> 00:23:42,880 committed same sex couple in a state before marriage equality 502 00:23:43,240 --> 00:23:46,760 don't get that same protection? It privileges the institution of 503 00:23:46,760 --> 00:23:50,480 marriage above other familial or long term relationships. 504 00:23:50,520 --> 00:23:54,200 A really interesting point, but for now, if you're married and 505 00:23:54,200 --> 00:23:57,040 in a TDE state, it's a huge benefit. 506 00:23:57,240 --> 00:23:59,360 How do you end a tendency by the entirety? 507 00:23:59,520 --> 00:24:01,920 Only three ways. One, death survivorship applies 508 00:24:01,920 --> 00:24:04,320 just like AJT 2 mutual agreement. 509 00:24:04,400 --> 00:24:07,480 Both spouses sign a deed to sell the property or change the title 510 00:24:07,480 --> 00:24:10,240 and three divorce. What happens upon divorce? 511 00:24:10,400 --> 00:24:13,560 Divorce automatically, by operation of law breaks the 512 00:24:13,560 --> 00:24:16,360 unity of marriage. The fortress walls crumble. 513 00:24:16,680 --> 00:24:19,000 The estate automatically converts to a tendency in 514 00:24:19,000 --> 00:24:22,360 common. The shield is gone, Survivorship 515 00:24:22,360 --> 00:24:24,640 right is gone. You are just two unrelated 516 00:24:24,640 --> 00:24:27,400 people owning property together. All right, we've covered the 517 00:24:27,400 --> 00:24:29,760 what the different types of ownership. 518 00:24:29,760 --> 00:24:34,360 Now let's talk about the how Module 5 rights and duties, the 519 00:24:34,480 --> 00:24:37,680 economics of Co ownership. This is where the real world 520 00:24:37,680 --> 00:24:39,400 fights happen. This is all about the money. 521 00:24:39,440 --> 00:24:42,000 And it usually starts with you're living there, I'm not, so 522 00:24:42,000 --> 00:24:44,440 you owe me rent. And the standard legal answer is 523 00:24:44,560 --> 00:24:47,040 no, I don't really. This goes right back to that 524 00:24:47,040 --> 00:24:49,440 foundational concept, the unity of possession. 525 00:24:50,080 --> 00:24:53,200 Since I have a legal right to possess the whole property, my 526 00:24:53,200 --> 00:24:55,880 living there alone is not wrongful, I'm just exercising my 527 00:24:55,880 --> 00:24:58,880 right. So the majority rule is that a 528 00:24:58,880 --> 00:25:02,480 Co tenant in exclusive possession owes no rent to the 529 00:25:02,480 --> 00:25:05,320 absent Co tenant. That feels profoundly unfair. 530 00:25:05,680 --> 00:25:08,360 I'm paying for my own apartment somewhere else and you're living 531 00:25:08,360 --> 00:25:10,000 in our jointly owned house for free. 532 00:25:10,240 --> 00:25:13,520 It feels unfair, but legally you have the right to move in too. 533 00:25:13,520 --> 00:25:16,640 You can show up with your suitcase tomorrow if you choose 534 00:25:16,640 --> 00:25:19,760 not to exercise your possession right, That's on you. 535 00:25:20,440 --> 00:25:24,520 Unless, and this is the big exception, unless there is 536 00:25:24,560 --> 00:25:26,200 ouster. The Vine ouster for us. 537 00:25:26,400 --> 00:25:29,680 Ouster is a wrongful exclusion. It's an affirmative act. 538 00:25:29,680 --> 00:25:32,520 It's not just me living there. It's me changing the locks and 539 00:25:32,520 --> 00:25:35,320 not giving you a key. It's me standing at the door and 540 00:25:35,320 --> 00:25:38,000 refusing to let you in. It's me sending you a letter 541 00:25:38,000 --> 00:25:40,640 explicitly denying your title to the property. 542 00:25:40,640 --> 00:25:42,920 An actual act of keeping the other person out. 543 00:25:42,960 --> 00:25:46,040 Yes, once ouster occurs, the clock starts ticking. 544 00:25:46,400 --> 00:25:49,920 From that moment forward, the occupying tenant owes the ousted 545 00:25:49,920 --> 00:25:52,800 tenant their share of the fair rental value of the property. 546 00:25:52,800 --> 00:25:55,160 OK, what about money coming from other sources? 547 00:25:55,520 --> 00:25:57,720 Let's say I'm living in the house alone, but I rent out the 548 00:25:57,720 --> 00:26:00,040 spare bedroom. Ah, now that's different. 549 00:26:00,200 --> 00:26:04,000 If a third party is involved and paying rent you have to share, 550 00:26:04,080 --> 00:26:06,560 that's income derived from the property itself. 551 00:26:06,800 --> 00:26:10,200 So if you rent out a room in our mansion to a stranger, you have 552 00:26:10,200 --> 00:26:11,640 to give me my share of that rent. 553 00:26:12,120 --> 00:26:14,640 Same if you start mining for gold on the property or cutting 554 00:26:14,640 --> 00:26:17,080 down timber. Any profits that deplete the 555 00:26:17,080 --> 00:26:21,320 Land's value must be shared. Now expenses Who pays the 556 00:26:21,320 --> 00:26:23,520 mortgage in taxes? Those are called carrying 557 00:26:23,520 --> 00:26:26,280 charges. These are the necessary costs to 558 00:26:26,280 --> 00:26:29,200 preserve the ownership. Generally Co tenants must 559 00:26:29,200 --> 00:26:30,840 contribute their proportional share. 560 00:26:31,040 --> 00:26:34,560 If I pay the whole property tax bill for the year, I can sue you 561 00:26:34,560 --> 00:26:36,880 for contribution for your half. Simple enough? 562 00:26:36,880 --> 00:26:39,680 What about repairs? I noticed a leaky roof and spend 563 00:26:39,680 --> 00:26:42,360 $5000 fixing it. Can I send you a bill bill for 564 00:26:42,360 --> 00:26:45,160 2500? This is tricky, and the general 565 00:26:45,160 --> 00:26:48,840 rule is surprisingly no, you don't have a direct right to sue 566 00:26:48,840 --> 00:26:51,720 for contribution for necessary repairs during the tenancy. 567 00:26:51,720 --> 00:26:53,680 Why not? The roof needed fixing. 568 00:26:53,920 --> 00:26:57,400 The law is reluctant to let one Co tenant force another into 569 00:26:57,400 --> 00:26:59,360 expensive repairs they might not agree on. 570 00:27:00,160 --> 00:27:04,240 The proper procedure is usually to wait until the end until a 571 00:27:04,240 --> 00:27:07,840 partition or a final accounting action to get credited for that 572 00:27:07,840 --> 00:27:10,600 necessary expense. OK, so you get the money back 573 00:27:10,600 --> 00:27:14,240 eventually, but not right away. What about improvements? 574 00:27:14,360 --> 00:27:17,480 Not a repair but something new. I had a swimming pool. 575 00:27:17,640 --> 00:27:20,200 For improvements, there is absolutely no right to 576 00:27:20,200 --> 00:27:22,440 contribution. You improve the property at your 577 00:27:22,440 --> 00:27:25,600 own risk and your own expense. You can't force me to pay for a 578 00:27:25,600 --> 00:27:28,680 pool I didn't want. But if we sell the house and the 579 00:27:28,680 --> 00:27:31,800 pool adds say $100,000 to the sale price. 580 00:27:31,880 --> 00:27:34,560 Then you're in luck. In the partition action, you get 581 00:27:34,560 --> 00:27:36,880 the increase in value that the pool caused. 582 00:27:37,040 --> 00:27:39,720 Not the cost of the pool, but the value it added. 583 00:27:39,720 --> 00:27:43,520 So if I spent 80,000 and it added 100,000 value, I get that 584 00:27:43,520 --> 00:27:45,720 100,000 off the top before we split the rest. 585 00:27:45,720 --> 00:27:47,160 Exactly. But be careful. 586 00:27:47,160 --> 00:27:49,960 There's a downside. If your improvement actually 587 00:27:49,960 --> 00:27:53,720 makes the property value drop, maybe it's a terrible, ugly 588 00:27:53,720 --> 00:27:56,520 pool. You're liable for that loss. 589 00:27:57,080 --> 00:27:58,720 That's called ameliorative waste. 590 00:27:58,920 --> 00:28:01,600 Let's look at the Florida case, Barrow V Barrow. 591 00:28:02,400 --> 00:28:05,200 This puts all this math into a real world context. 592 00:28:05,240 --> 00:28:08,360 This is a great case study because it shows how courts use 593 00:28:08,400 --> 00:28:10,760 equity to balance these strict rules. 594 00:28:11,160 --> 00:28:14,600 It was a post divorce scenario. The husband and wife became 595 00:28:14,600 --> 00:28:16,960 tenants in common of the former marital home. 596 00:28:17,320 --> 00:28:19,960 The husband stayed in the house, the wife moved out. 597 00:28:20,080 --> 00:28:23,480 A very common fact pattern. Very later the husband brought 598 00:28:23,480 --> 00:28:27,240 an action saying, hey, for the past few years I've paid all the 599 00:28:27,240 --> 00:28:29,160 mortgage, all the taxes, all the insurance. 600 00:28:29,280 --> 00:28:32,240 You owe me your half. A standard contribution claim. 601 00:28:32,320 --> 00:28:35,000 Right, a textbook claim for carrying charges. 602 00:28:35,480 --> 00:28:37,120 But the wife's response was clever. 603 00:28:37,160 --> 00:28:39,040 She said fine, I'll pay my share. 604 00:28:39,160 --> 00:28:41,280 But you live there alone for all those years. 605 00:28:41,520 --> 00:28:43,640 You owe me rent for my half of the house. 606 00:28:43,800 --> 00:28:46,160 But wait, you just said there's no rent without ouster. 607 00:28:46,400 --> 00:28:49,080 Was he ousting her? Did he change the locks? 608 00:28:49,160 --> 00:28:50,760 No, there was no evidence of ouster. 609 00:28:50,760 --> 00:28:54,000 She left voluntarily, so under the strict rule he didn't owe 610 00:28:54,000 --> 00:28:58,240 her rent, but UT and this is the key holding and Barrow when the 611 00:28:58,400 --> 00:29:02,200 occupying tenant, the husband, affirmatively asks the court for 612 00:29:02,200 --> 00:29:04,560 contribution for expenses. When he's the one asking for 613 00:29:04,560 --> 00:29:08,080 money. Yes, the court says OK, we need 614 00:29:08,080 --> 00:29:11,080 to balance the equities. If you want money from her for 615 00:29:11,080 --> 00:29:15,120 the bills, she gets to offset that claim with the fair rental 616 00:29:15,120 --> 00:29:19,520 value of your sole occupancy. So she can't sue him for rent 617 00:29:19,520 --> 00:29:23,040 directly as a sword, but she can use the rent value as a shield 618 00:29:23,240 --> 00:29:25,080 to cancel out his bill for the taxes. 619 00:29:25,080 --> 00:29:27,080 Exactly, it's a shield, not a sword. 620 00:29:27,680 --> 00:29:30,880 The offset rule says his claim for contribution is reduced by 621 00:29:30,880 --> 00:29:33,360 the value of the benefit he received from living there 622 00:29:33,360 --> 00:29:35,680 alone. It ensures he doesn't get to 623 00:29:35,680 --> 00:29:38,240 live rent free and have her pay half the bills. 624 00:29:38,480 --> 00:29:41,040 It's an equitable balancing. That seems much more fair. 625 00:29:41,240 --> 00:29:45,200 Finally, module 6 when it all falls apart partition. 626 00:29:45,400 --> 00:29:48,800 Partition is the end game. It's the judicial mechanism to 627 00:29:48,840 --> 00:29:51,240 end a Co tendency when the parties just can't agree 628 00:29:51,240 --> 00:29:53,800 anymore. Any Co tenant has an absolute 629 00:29:53,800 --> 00:29:56,280 right to demand partition. And there were two types, right 630 00:29:56,320 --> 00:29:59,160 in kind and by sale. Correct, partition in kind is 631 00:29:59,160 --> 00:30:02,520 the strong judicial preference. If it's possible the court wants 632 00:30:02,520 --> 00:30:04,040 to physically divide the property. 633 00:30:04,160 --> 00:30:06,560 You literally take the land and draw a line down the middle. 634 00:30:06,680 --> 00:30:09,080 If it's 100 acre farm you get the N 50 acres. 635 00:30:09,080 --> 00:30:12,040 I get the S 50 acres. No, we are neighbors not Co 636 00:30:12,040 --> 00:30:13,840 owners. Courts like this because it 637 00:30:13,840 --> 00:30:15,560 preserves land of ownership. Exactly. 638 00:30:15,560 --> 00:30:19,120 It keeps people on their land, but that doesn't work for a 639 00:30:19,120 --> 00:30:21,880 single family home. You can't saw a house in half 640 00:30:21,920 --> 00:30:24,000 and give each person a working half right? 641 00:30:24,200 --> 00:30:27,680 So if physical division is impractical, or if it would 642 00:30:27,680 --> 00:30:31,360 greatly prejudice the value of the whole, the court will order 643 00:30:31,400 --> 00:30:34,040 a partition by sale. They sell the whole thing and 644 00:30:34,040 --> 00:30:35,280 split the money. Right. 645 00:30:35,920 --> 00:30:39,040 The sheriff sells the house on the courthouse steps, or more 646 00:30:39,040 --> 00:30:42,320 commonly now a realtor is appointed to sell it on the open 647 00:30:42,320 --> 00:30:45,400 market and the cash is split according to the ownership 648 00:30:45,400 --> 00:30:46,600 shares. And that's when the final 649 00:30:46,600 --> 00:30:49,200 accounting happens. Yes, that's the moment of 650 00:30:49,200 --> 00:30:51,600 reckoning. Before distributing the cash, 651 00:30:51,600 --> 00:30:55,080 the court tallies up all those IO us we talked about who paid 652 00:30:55,080 --> 00:30:58,480 the taxes, who collected rents from a third party, who made a 653 00:30:58,480 --> 00:31:01,960 necessary repair, who made an improvement that added value. 654 00:31:02,360 --> 00:31:05,280 All of those credits and debits are sorted out, and the final 655 00:31:05,280 --> 00:31:08,200 payout from the sale proceeds is adjusted accordingly. 656 00:31:08,320 --> 00:31:11,880 Wow, it really is a mathematical and legal web from start to 657 00:31:11,880 --> 00:31:13,640 finish. So we've reached the end of the 658 00:31:13,640 --> 00:31:15,080 modules. Let's do the outro. 659 00:31:15,080 --> 00:31:17,040 Let's recap the strategy for our listeners. 660 00:31:17,200 --> 00:31:20,520 Give them that exam checklist. OK, if you are facing a 661 00:31:20,520 --> 00:31:24,840 concurrent ownership problem on an exam, you need a systematic 662 00:31:24,840 --> 00:31:27,080 approach. Here's a four step framework. 663 00:31:27,080 --> 00:31:29,760 Step one. Step one, identify the estate. 664 00:31:30,080 --> 00:31:32,080 Look at the moment of creation. How is it made? 665 00:31:32,080 --> 00:31:34,960 Do you have the four unities? Do you have the magic words for 666 00:31:34,960 --> 00:31:37,040 survivorship? Are the parties married? 667 00:31:37,040 --> 00:31:40,720 If they are, you need to be thinking TBE and always remember 668 00:31:40,720 --> 00:31:44,000 the default if it's ambiguous, it's a tendency in common. 669 00:31:44,000 --> 00:31:46,360 OK, identify the estate. What's next? 670 00:31:46,360 --> 00:31:47,800 Step 2. Check for severance. 671 00:31:47,800 --> 00:31:49,760 This applies mainly to joint tendencies. 672 00:31:50,000 --> 00:31:52,800 Has anything happened since creation to break the unities? 673 00:31:52,800 --> 00:31:55,560 Did someone sell their share? Did someone take out a mortgage 674 00:31:55,560 --> 00:31:57,920 in a title theory state? Did someone try a sketchy self 675 00:31:57,920 --> 00:31:59,520 conveyance like in the Grant case? 676 00:31:59,520 --> 00:32:02,480 So has the nature of the ownership changed over time? 677 00:32:02,480 --> 00:32:04,960 Precisely Step 3. Step 3. 678 00:32:05,960 --> 00:32:09,160 Analyze the dispute. What is the fight actually 679 00:32:09,160 --> 00:32:11,400 about? Is it about who can live there? 680 00:32:11,400 --> 00:32:13,560 That's a possession and ouster issue. 681 00:32:13,800 --> 00:32:16,480 Is it about money? If so, where's the money coming 682 00:32:16,480 --> 00:32:18,680 from? A third party renter or profits 683 00:32:18,680 --> 00:32:21,040 from the land? Or is it a fight over who should 684 00:32:21,040 --> 00:32:23,280 pay for expenses? And that leads to the final 685 00:32:23,280 --> 00:32:24,440 step. Step 4. 686 00:32:24,960 --> 00:32:27,920 Apply the remedy Based on your analysis, what's the answer? 687 00:32:28,200 --> 00:32:30,080 Are we splitting proceeds in a partition? 688 00:32:30,080 --> 00:32:31,560 If so, you have to do the accounting. 689 00:32:32,040 --> 00:32:34,880 Are we applying the borrow offset rule in a contribution 690 00:32:34,880 --> 00:32:38,120 action or is someone dead and the answer is simply that 691 00:32:38,120 --> 00:32:40,320 survivorship applies and one person takes all? 692 00:32:41,000 --> 00:32:42,960 That is a solid practical framework. 693 00:32:43,440 --> 00:32:45,080 Before we go, I want to leave the listeners with that 694 00:32:45,080 --> 00:32:46,880 provocative thought. From the Marquette article. 695 00:32:47,040 --> 00:32:50,080 We talked about tbe being for married couples only. 696 00:32:50,320 --> 00:32:52,480 Right, the article really challenges that. 697 00:32:52,480 --> 00:32:55,120 It asks why do we still use these medieval forms that are 698 00:32:55,120 --> 00:32:57,800 tied so tightly to one specific type of relationship? 699 00:32:58,360 --> 00:33:00,800 Why not modernize? And the author proposes A 700 00:33:01,000 --> 00:33:03,880 familial residence exemption. Exactly. 701 00:33:04,160 --> 00:33:06,720 Instead of basing these powerful protections on a marriage 702 00:33:06,720 --> 00:33:09,640 license, base them on the function of the household. 703 00:33:10,280 --> 00:33:13,400 Why shouldn't 2 elderly sisters who live together and have 704 00:33:13,400 --> 00:33:16,000 supported each other their entire lives have the same 705 00:33:16,000 --> 00:33:18,640 creditor protection for their home as a married couple? 706 00:33:18,920 --> 00:33:22,640 Why shouldn't same sex couple or any long term committed partners 707 00:33:22,800 --> 00:33:25,680 have that same security for their shared residents? 708 00:33:25,960 --> 00:33:30,240 So it's a call to move away from marriage centric property law 709 00:33:30,400 --> 00:33:32,720 toward home centric protections. It is. 710 00:33:32,720 --> 00:33:35,280 It's an argument that the law should protect the stability of 711 00:33:35,280 --> 00:33:38,080 the home regardless of the marital status of the people 712 00:33:38,080 --> 00:33:40,400 living in it. Something to Mull over as you 713 00:33:40,400 --> 00:33:42,360 study. It's a great reminder that 714 00:33:42,360 --> 00:33:45,400 property law isn't just a set of abstract rules. 715 00:33:45,880 --> 00:33:48,960 It reflects what society values and chooses to protect. 716 00:33:49,000 --> 00:33:52,640 And those values can and maybe should change over time. 717 00:33:52,960 --> 00:33:54,760 Thank you for diving deep with us today. 718 00:33:54,920 --> 00:33:57,080 Until next time, keep your unities intact. 719 00:33:57,240 --> 00:33:58,920 And watch out for those straw men. 720 00:33:59,360 --> 00:34:02,360 Welcome to our deep dive on concurrent ownership. 721 00:34:02,640 --> 00:34:06,040 Now this is a foundational, heavily tested topic on pretty 722 00:34:06,040 --> 00:34:09,320 much any property exam. By the end of this, you're going 723 00:34:09,320 --> 00:34:13,000 to have a really clear framework to analyse any question that 724 00:34:13,000 --> 00:34:14,679 comes your way. So let's get started. 725 00:34:15,480 --> 00:34:17,920 So picture this. It's a classic fact pattern. 726 00:34:17,960 --> 00:34:19,920 You and a friend go in on a house together. 727 00:34:20,120 --> 00:34:22,920 Then one of you dies. Who gets that person's share? 728 00:34:23,320 --> 00:34:25,360 Well, the answer isn't simple at all. 729 00:34:25,520 --> 00:34:28,360 It actually depends entirely on how you hold the title to the 730 00:34:28,360 --> 00:34:30,120 property. And that's exactly what we're 731 00:34:30,120 --> 00:34:32,920 here to master today. Here's our road map for this 732 00:34:32,920 --> 00:34:34,880 session. First we'll look at the three 733 00:34:34,880 --> 00:34:38,120 main ways to Co own property. Then we'll do a deep dive into 734 00:34:38,120 --> 00:34:41,080 tenancy in common, which is the default, followed by its very 735 00:34:41,080 --> 00:34:44,080 different cousin, joint tenancy. We'll cover how you can break a 736 00:34:44,080 --> 00:34:46,440 joint tenancy that's called severance, and then we'll 737 00:34:46,440 --> 00:34:48,800 outline the rights and duties Co owners have to each other. 738 00:34:49,080 --> 00:34:51,639 We'll finish up by flagging the most common traps you'll see on 739 00:34:51,639 --> 00:34:54,280 an exam. OK, let's start with the big 740 00:34:54,280 --> 00:34:56,480 picture. When multiple people want to own 741 00:34:56,480 --> 00:34:59,360 property at the same time, the legal system gives them three 742 00:34:59,360 --> 00:35:01,440 main options. Getting these straight from the 743 00:35:01,440 --> 00:35:03,640 gecko is your first and most important step. 744 00:35:04,480 --> 00:35:07,880 So these are your three choices. You've got tenancy in common or 745 00:35:07,880 --> 00:35:11,320 tick, you have joint tenancy or JT, and then there's a 746 00:35:11,320 --> 00:35:14,440 specialized form called tenancy by the entirety, which you can 747 00:35:14,440 --> 00:35:17,120 think of as a joint tenancy just for married couples. 748 00:35:17,760 --> 00:35:20,280 We're going to focus mainly on the 1st 2:00 because that's the 749 00:35:20,280 --> 00:35:21,480 core of what you'll be tested on. 750 00:35:22,320 --> 00:35:24,400 All right, let's start with tenancy in common. 751 00:35:24,600 --> 00:35:26,800 This is always your analytical starting point. 752 00:35:26,840 --> 00:35:28,960 Why? Because it's the legal default. 753 00:35:29,280 --> 00:35:32,720 If a deed or a will is silent, if it doesn't say anything else, 754 00:35:32,720 --> 00:35:35,880 the law automatically assumes it's a tendency in common. 755 00:35:36,680 --> 00:35:39,080 And that's the absolute crucial point. 756 00:35:39,520 --> 00:35:42,760 If the document that created the ownership, the deed, the will 757 00:35:42,920 --> 00:35:47,640 doesn't specify, a court will always, always find a tendency 758 00:35:47,640 --> 00:35:50,120 in common. Each person owns a fraction of 759 00:35:50,120 --> 00:35:53,440 the value, but, and this is key, has the right to possess the 760 00:35:53,440 --> 00:35:56,120 whole thing. So what really defines a 761 00:35:56,120 --> 00:35:59,080 tendency in common? Well, number one is the complete 762 00:35:59,080 --> 00:36:02,080 lack of survivorship rights. Just think of a Co tenants 763 00:36:02,080 --> 00:36:03,960 interest as any other asset in their estate. 764 00:36:04,160 --> 00:36:07,160 It can be sold, it can be gifted, it can be passed down in 765 00:36:07,160 --> 00:36:09,840 a will to their heirs, and as you can see, the shares don't 766 00:36:09,840 --> 00:36:13,880 even have to be equal. Now this right here is a classic 767 00:36:13,880 --> 00:36:16,440 exam trap. If one Co tenant is living on 768 00:36:16,440 --> 00:36:19,080 the property and the others aren't, that is perfectly fine. 769 00:36:19,280 --> 00:36:21,520 It does not trigger a duty to pay rent. 770 00:36:21,920 --> 00:36:25,120 Liability for rent only kicks in when there is an actual wrongful 771 00:36:25,120 --> 00:36:28,200 act of ouster, like changing the locks and telling your Co tenant 772 00:36:28,200 --> 00:36:31,000 they can't come in. You have to be really careful to 773 00:36:31,000 --> 00:36:34,000 distinguish between repairs and improvements. 774 00:36:34,600 --> 00:36:37,040 Necessary repairs, You know, fixing a leaky roof? 775 00:36:37,040 --> 00:36:40,080 That's a shared cost. A Co tenant who pays for that 776 00:36:40,080 --> 00:36:42,240 can demand contribution from the others. 777 00:36:42,600 --> 00:36:45,560 But improvements like adding a fancy new deck are considered a 778 00:36:45,560 --> 00:36:48,640 unilateral risk. You can't force your Co tenants 779 00:36:48,640 --> 00:36:51,160 to pay for your upgrade now. You might get credit for the 780 00:36:51,160 --> 00:36:54,760 value it added if the property is later sold, but not before. 781 00:36:55,560 --> 00:36:58,480 And don't forget, the law sees paying the mortgage and property 782 00:36:58,480 --> 00:37:01,840 taxes as essential to preserving the property for everyone. 783 00:37:02,000 --> 00:37:05,360 So just like with necessary repairs, if one Co tenant covers 784 00:37:05,360 --> 00:37:08,000 more than their fair share of these costs, they always have a 785 00:37:08,000 --> 00:37:09,760 right to get that money back from the others. 786 00:37:10,440 --> 00:37:13,120 OK, let's pivot and turn to joint tenancy. 787 00:37:13,400 --> 00:37:15,840 This way of owning property is completely different from a 788 00:37:15,840 --> 00:37:20,360 tenancy in common, and it's all because of one powerful and very 789 00:37:20,360 --> 00:37:23,360 heavily tested feature, the right of survivorship. 790 00:37:24,200 --> 00:37:26,440 This, this is the magic of a joint tenancy. 791 00:37:26,560 --> 00:37:30,440 When one joint tenant dies, their interest just vanishes. 792 00:37:30,720 --> 00:37:33,040 It's automatically absorbed by the survivors. 793 00:37:33,360 --> 00:37:36,840 It happens by operation of law, completely bypassing the whole 794 00:37:36,840 --> 00:37:39,720 probate process. And get this, defeating any 795 00:37:39,720 --> 00:37:42,920 conflicting language in a will, the will becomes irrelevant for 796 00:37:42,920 --> 00:37:45,320 that property. So to create this really 797 00:37:45,320 --> 00:37:47,920 powerful estate, the common law is very strict. 798 00:37:48,120 --> 00:37:49,960 It requires what we call the four unities. 799 00:37:50,280 --> 00:37:53,440 The best way to remember them is the mnemonic tip, tip, time, 800 00:37:53,800 --> 00:37:57,920 title, interest, and possession. If even one of these is missing 801 00:37:57,920 --> 00:38:01,040 when the property is acquired, the law says Nope, not a joint 802 00:38:01,040 --> 00:38:03,800 tenancy, and it defaults right back to our old friend the 803 00:38:03,800 --> 00:38:06,520 tenancy in common. And this is a perfect 804 00:38:06,520 --> 00:38:09,320 illustration of the magic words you need, because courts 805 00:38:09,320 --> 00:38:11,400 historically haven't been big fans of the right of 806 00:38:11,400 --> 00:38:13,640 survivorship. You know, since it cuts out a 807 00:38:13,640 --> 00:38:16,040 person's airs. You have to use crystal clear 808 00:38:16,040 --> 00:38:18,120 express language like this to create one. 809 00:38:18,480 --> 00:38:21,400 Any ambiguity is always going to be resolved in favor of a 810 00:38:21,400 --> 00:38:24,280 tenancy in common. A joint tenancy might be 811 00:38:24,280 --> 00:38:26,800 powerful, but it's also incredibly fragile. 812 00:38:27,040 --> 00:38:29,440 It could be easily destroyed during the lifetime of the Co 813 00:38:29,440 --> 00:38:31,640 tenants through an act we call severance. 814 00:38:31,960 --> 00:38:33,600 Let's take a look at how that happens. 815 00:38:34,320 --> 00:38:37,680 The key thing to get here is that severance is a one way St. 816 00:38:37,880 --> 00:38:41,280 Once a joint tenancy is severed for a particular share, it is 817 00:38:41,280 --> 00:38:43,520 gone forever. The right of survivorship is 818 00:38:43,520 --> 00:38:46,920 permanently destroyed for that piece, converting it into a 819 00:38:46,920 --> 00:38:51,480 plain old tenancy in common. Now remember, severance must 820 00:38:51,480 --> 00:38:53,480 happen during the joint tenants lifetime. 821 00:38:53,640 --> 00:38:56,600 That's what inter vivos means. Selling your share to someone 822 00:38:56,600 --> 00:39:00,520 else is the classic example. A will, however, is always too 823 00:39:00,520 --> 00:39:02,920 late. Survivorship is instantaneous at 824 00:39:02,920 --> 00:39:05,680 the moment of death, so by the time the will is red, there's no 825 00:39:05,680 --> 00:39:07,600 interest left for it to even act upon. 826 00:39:08,160 --> 00:39:11,400 This example of partial severance is a very common exam 827 00:39:11,400 --> 00:39:13,080 scenario, so let's walk through it. 828 00:39:13,880 --> 00:39:18,120 AB and C start as joint tenants. A then sells her 1/3 interest to 829 00:39:18,120 --> 00:39:21,480 an outsider, D. That act of selling severs A's 830 00:39:21,480 --> 00:39:24,000 interest from the joint tenancy. So what's the result? 831 00:39:24,320 --> 00:39:27,600 D now holds a 1/3 interest as a tenant in common with B&C. 832 00:39:27,600 --> 00:39:30,600 But, and this is the tricky part, the relationship between 833 00:39:30,600 --> 00:39:33,720 B&C is undisturbed. They remain joint tenants with 834 00:39:33,720 --> 00:39:36,120 each other sharing the remaining 2/3 interest. 835 00:39:36,880 --> 00:39:40,360 OK for exam purposes, this is a huge, huge issue. 836 00:39:40,600 --> 00:39:43,160 Whether taking on a mortgage severs a joint tenancy depends 837 00:39:43,160 --> 00:39:46,360 entirely on the jurisdiction. In a minority of states, called 838 00:39:46,360 --> 00:39:49,400 title theory states, a mortgage is seen as a transfer of title, 839 00:39:49,520 --> 00:39:51,960 which breaks the unities and severs the joint tenancy right 840 00:39:51,960 --> 00:39:54,040 away. But in the majority of lean 841 00:39:54,040 --> 00:39:56,960 theory states, a mortgage is just a security interest, not a 842 00:39:56,960 --> 00:39:58,880 title transfer, so it does not sever. 843 00:39:59,200 --> 00:40:01,640 This creates a wild result. If the tenant who took out the 844 00:40:01,640 --> 00:40:04,440 mortgage dies, the survivor takes the whole property and 845 00:40:04,440 --> 00:40:08,000 that mortgage is just wiped out. So now that we know how these Co 846 00:40:08,000 --> 00:40:11,280 tendencies are created and how they can be destroyed, let's 847 00:40:11,280 --> 00:40:14,680 just briefly cover the rules of the road, the ongoing rights, 848 00:40:14,800 --> 00:40:17,840 duties and remedies that apply to all Co tenants while they're 849 00:40:17,840 --> 00:40:20,680 living together. These are basically the tools 850 00:40:20,680 --> 00:40:22,800 for managing the Co ownership relationship. 851 00:40:23,160 --> 00:40:25,280 You've got accounting for profits if you're renting the 852 00:40:25,280 --> 00:40:27,760 place out. There is contribution for those 853 00:40:27,760 --> 00:40:31,000 shared costs we talked about. There are legal actions for 854 00:40:31,000 --> 00:40:32,840 waste if someone damages the property. 855 00:40:33,120 --> 00:40:35,880 And then there's the ultimate escape hatch for any Co tenant 856 00:40:35,880 --> 00:40:39,480 who just wants out the absolute right to go to court and ask for 857 00:40:39,480 --> 00:40:42,120 partition. All right, let's wrap this up by 858 00:40:42,120 --> 00:40:44,880 flagging the most common errors students make on exams. 859 00:40:45,240 --> 00:40:47,960 Mastering these distinctions is what's going to secure you those 860 00:40:47,960 --> 00:40:50,920 top marks. Think of this slide as your 861 00:40:50,920 --> 00:40:55,320 checklist for success #1 always start your analysis with the 862 00:40:55,320 --> 00:40:59,520 default, which is tendency in common #2 Know your severance 863 00:40:59,520 --> 00:41:01,360 rules. Cold especially that a deed 864 00:41:01,360 --> 00:41:05,480 severs, but a will is totally ineffective #3 don't find an 865 00:41:05,480 --> 00:41:08,200 ouster just because one person is living on the property. 866 00:41:08,440 --> 00:41:11,640 And finally, if a mortgage shows up in the facts, you must 867 00:41:11,640 --> 00:41:14,120 analyze the title versus lean theory split. 868 00:41:15,000 --> 00:41:17,920 And that brings us to our final crucial point. 869 00:41:18,280 --> 00:41:21,320 No one is ever truly trapped in a Co tendency. 870 00:41:21,760 --> 00:41:24,840 The absolute right to bring a court action for partition 871 00:41:25,040 --> 00:41:28,360 guarantees a way out. The court will either physically 872 00:41:28,360 --> 00:41:31,360 divide the property or more commonly, order it sold and 873 00:41:31,360 --> 00:41:34,240 divide the money. So always keep that in mind as 874 00:41:34,240 --> 00:41:37,240 the ultimate backstop when you're analyzing these problems.