美国财产法property-Concurrent ownership and marital property

Chapter 6: Concurrent ownership and marital property
A.Concurrent ownership
a.Modern concurrent estates
1.
2.James v. Taylor
Issue: whether the deed was a conveyance to them as tenants in common or as joint tenants with the right of survivorship.
Rule: (1) Under Arkansas law, a deed to two or more persons presumptively creates a tenancy in common unless the deed expressly creates a joint tenancy. (2) Evidence of the grantor’s intention cannot prevail the statute.
Addition: the modern trend is to focus more on the grantor’s intent and less on formulaic language.
b.Severance
1.Tenhet v. Boswell
Issue: whether the joint tenancy is severed if a joint tenant leases his interest to others?
Rule: the lease does not serve the joint tenancy, but expires upon the death of the lessor joint tenancy.
Policy: The nature of joint tenancy is that any joint tenant has an expectation of the right of survivorship. So the lease must end at the earlier of the two events: the end of the lease term or the death of the lessor.
Addition: As we require express intent to establish joint tenancy, the desire to terminate the joint tenancy also should be clear and unambiguous.
c.Partition
1.Ark land Co. v. Harper
Issue: whether the evidence supported the circuit court’s conclusion that the property could not be conveniently partitioned in kind, thus warranting a partition by sale.
Rule: (1) Partition in kind is the preferred method of partition because it leaves cotenants holding the same estates as before and does not force a sale on unwilling cotenants.
(2)Standard of proof that must be established to overcome the presumption of partition in kind: ①the property cannot be conveniently partitioned in kind ②the interests of one or more of the parties will be promoted by the sale ③the interests of other parties will not be prejudiced by the sale.
(3) The economic value of property is not the exclusive test for determining whether to partition in kind or by sale.
(4) The evidence of longstanding ownership, coupled with sentimental or emotional interests in the property, should ordinarily control when it is shown that the property can be partitioned in kind, though it may entail some economic inconvenience to the party seeking a sale.
Dissent: the sporadic use of the property does not outweigh the economic inconvenience.
Addition: (1) Partition in kind is preferred in theory, but partition by sale is used more commonly in practice.
(2) Partition in kind tends to fragment property right, which may lead to the underutilization of land.
(3) Agreements not to partition were an invalid restraint on alienation. But today, most jurisdictions allow an agreement against partition if it is reasonable in duration and purpose.
d.Cotenant rights and duties
1.Esteves v. Esteves
Issue: whether one tenant who does not occupy the property can require the one who occupies the property to allow him credit for the reasonable value of the occupancy.
Rule: (1) on general proposition, all the tenants should pay equally.
(2)The one who choose not to occupy the property does not have right to impose
an charge on the other.
(3)But when the tenant who had been in sole possession of the property demands contribution toward operating and maintenance expenses from his co-owner, it is fair to allow a corresponding credit for the value of his sole occupancy of the premises.
Addition: (1) if A ousted B, A is liable to B for B’s share of the rental value of A’s occupancy. (2) A is effectively an adverse possessor. So B must assert his interest within the statutory period or risk losing it entirely. (3) sharing costs: necessary or not
B.Marital property
a.Separate property system(most jurisdictions)
1.During the marriage: property is separately owned by the spouse who acquires
it. The creditor of a particular spouse can only attach the separate property of that spouse.
2.Divorce: equitable distribution considering many factors based on the
property acquired during(most) or even before(a few) the marriage
3.Death: offer the surviving spouse a forced share of the decedent’s estate
(dower right) note: not personal property.
munity property system
1.During the marriage: All earnings during the marriage are owned by both
spouses equally.
2.Divorce: equal share or also consider equitable distribution factors
3.Death: devise the half of the community property as he desires. ( no dower
right)
c.Tenancy by the entirety
1.Today, only half of the states recognize this cotenancy.
2.The tenancy by the entirety may offer significant protection from creditors.
3.Sawada v. Endo
Issue: whether the interest of one spouse in real property, held in tenancy by the entireties, is subject to levy and execution by his or her individual creditors. Rule: (1) an estate by the entirety is not subject to the claims of the creditors of one of the spouses during their joint lives.
(2) The nature of the tenancy by the entirety: neither husband nor wife has a separate divisible interest in the property held by the entirety that can be conveyed or reached by execution.
(3) No unfairness to the creditor is involved here.
Policy: favoring the interests of the family unit
Addition: (1) a creditor normally has the ability to investigate a person’s financial status before extending credit (2) the difference between voluntary and involuntary creditors
d.Defining marital property
1.Guy v. Guy
Issue: whether a professional degree is marital property
Rule: (1) A professional degree obtained by a student spouse during a marriage is not marital property. (2) But the supporting spouse has a right to be compensated or reimbursed, upon proper proof.。