Shared property outline

A. Gift
Gifts that are made at death by a will are called testamentary gifts
Testamentary gift only if 1. A signed writing; 2. With witness
Inter vivos gift: life time gifts.
Causa mortis: widely recognized conditional gift. A gift that is based on assumption that the donor
will die soon.
If the criteria are met, then donor can revoke the gift at any time until death.
1. donative intent; 2. Delivery; 3. Acceptance; 4. The donor’s expectation of imminent death.
Intent
Delivery: the donor must deliver the subject matter of the gift to the done. Delivery may be
physical, constructive, or symbolic
a. Constructive delivery provides the donee with the means of access, allowing the done to
acquire physical possession.
Eg. To give a car as the gift, the title of certificate is symbolic delivery because the title
cannot help unlock the car; the key is the constructive delivery.
b. Delivery
a) Simpson v. Simpson - Father promises gun to his son on a fishing trip. 7 months later,
he dies. He made no delivery acts from the time of his promise to his death. There is no
gift.
b) When Delivery is impractical, you can do a constructive delivery (relinquishing
something that gives up your control over it such as a key) or a symbolic delivery through
an instrument.
i. Gruen v. Gruen -Father promises to give his son a painting, but he has a life estate in it
and will pass to the son upon his death. But father will retain it for tax reasons. When
the father dies, son wants the painting but stepmother keeps it and cites there were no
delivery. The court argues that the delivery of instrument (the letters) was enough and
was also proof of intent. There was no reason to deliver the actual painting.

Acceptance
When an alleged gift is disputed, the done has the burden of proof for all three elements
Inter vivos gift: all three elements are satisfied, and at that time the gift is generally irrevocable.
This means that the done has title, and a donor has no right to change her mind and retrieve
the chattel.
Note: a gift, once completed with all three elements satisfied, is irrevocable.
 II) Gifts of Personal Property
A. A gift is a voluntary transfer of property without any consideration. Elements are
intention, delivery, and acceptance.
B. Types of Gifts
1) Inter Vivos – gift made during donor’s life without threat of impending death. Once
given, it cannot be taken back.
2) Gift Causa Mortis – Gifts made in contemplation of immediate or approaching death. If
donor does not die, he can revoke. The elements needed in addition to the original 3 are
apprehension of death and death itself.
a) In Re Estate of Smith, 1997 - Decedent made out several checks to family members
before he committed suicide. He also included an option to buy a corvette for a price.
Was it a gift, including the option? The court says yes. The requirements are intention,
apprehension of death, delivery, and actual death. If the suicide attempt failed, he can
revoke it.
3) Conditional Gifts
a) General rule is they must be given back if conditions aren’t met. Engagement rings are
a special case.

B. Concurrent ownership
Co-tenant has the right to make a limited transfer: transfer a right to possession by leasing her
interest.
A co-tenant is entitled to take sole possession, with no duty to account to the other co-tenants. An
exception is made if there is an ouster.: if the possessing cotenant excludes the other cotenants,
preventing them from entering and also enjoying the property. The ousted cotenant may recover
damages and injunctive relief.
Co-owners have a duty not to commit “ waste” by neglecting or destroying the property.
Improvement: unlike repairs and maintenance, co-owner are not required to share costs of
improvements. Instead, the added value from any improvements can be claimed later
by the owner who made the investment.

Cases:
1. Esteves v. Esteves
Where a cotenant has sole possession of the property and demands contribution for
operating and maintenance expenses from the non-possessing cotenant, the tenant in
possession must allow a corresponding credit for the value of his sole occupancy.
First, each cotenant must pay his pro rata share of the operating and maintenance expenses for the
property. If one cotenant has paid less than his pro rata share, he must reimburse the cotenant who paid more
than his pro rata share.
Second, even though one tenant enjoys sole occupancy of the property, the non-possessing
tenant has no right to receive rent from the tenant in possession. All tenants in common are entitled to
occupy their property free of charge.
2. Olivas v. Olivas
A spouse who moves out of the marital residence by his own choosing for personal reasons is
not entitled to rent from the remaining spouse.

B.1 Type of co-ownership

a. Tenancy in commons
Tenancy in common
With a tenancy in common, each cotenant owns a separate, undivided interest in the property.
Unequal shares are permitted.
Note: the allowance of unequal shares does not override the basic principle that each tenant in
common has a right to use or possess all of the property.
a. A tenant in common with a small fractional share still has the right to make personal use of all of
the property. The smallness of a particular share becomes significant only when the property is
portioned or when there are rents and profits to divide among the tenants in common.
b. a tenant in common has no survivorship rights.
Tenancy in Common Is Presumed
1) If A&B isn’t married and there is no express provision of joint tenancy, then it is presumed it
is a tenancy in common.
Joint tenancy
Transfer by one co-owner
If an owner has a one-third interest and transfer that interest to another, there is a severance, and
it destroys the right of survivorship.
Joint tenant can self-convey and thus destroy a joint tenancy. There’s no need for party seeking
transfer of ownership to first give notice to, or obtain the consent of, the remaining tenant to
effectuate the conveyance.
Carr. V. deking: a co-tenant may lease out his interest in the property to a third party without the
permission of his co-tenant; but co-tenant enjoys the benefits of the lease.
The conveyance “ to have and to hold and to enjoy together forever” suggest a type of unity of
purpose that’s consistent with a joint tenancy.
Four unities:
1. unity of title
2. unity of time
3. unity of interest: each joint tenant obtained the same fractional share
4. unity of possession
note: four unities give rise to the doctrine of severance. Once a joint tenancy is created, the
unites must persist intact for the joint tenancy to continue. If one joint tenant conveys her
interest to a grantee, the joint tenancy is served, aka terminated as to the interest that is
conveyed.
When there are more than two joint tenants, a conveyance servers the joint tenancy only
as to the interest conveyed. Eg. A, b, c joint tenancy. While a conveys interest to e, b and c still
hold their 1/3 as joint tenants with each other. So if b dies, b’s interest transfers to c and c holds
2/3 interest while a holds 1/3 interest.

Neither can exclude each other- both are legally entitled to be in that space.
In the absence of an agreement to the contrary, a right of co-possession to the entire property
is a basic feature.
Joint tenancy with the right of survivorship
If a co-owner dies with this property structure in place, his or her share is extinguished at
death, and that share is absorbed by the other owners.
Four unities: some state will not recognize a joint tenancy if there are owners with
unequal shares
1. time
2. title
3. interest (equal share)
4. possession
How to create
1. Clearest way: “to A and B as joint tenants with the right of survivorship.”
2. Court split on “To A and B as joint tenants.” Some courts say you have to express right of
survivorship.
 b. Tenancy by the entirety
Creation- presumption conveyance to H and W creates this ten.
Upon death, Rt. survivorship like jt. ten.
Unlike jt. ten., neither H nor W can unilaterally defeat the rt. survivorship of the other by a
conveyance of his or her share/moiety since they're seen as one entity. Only a conveyance by H and
W together can defeat the rt. survivorship . (But in some sts., see below, one spouse can convey
his/her own rt. survivorship, though this doesn't defeat rt. of survivorship.)
Neither H nor W acting alone has rt. to partition since they're considered one entity.
A) Upon divorce, ten. in common. Divorce: A divorce ends a tenancy by its entirety. Most
states presume it will be turned into a tenancy in common, since spouses do not want the
other to have survivorship.
4 groups re alienability/creditors
1) Common law ten. by the entirety unaffected by Married Women's Prop. Acts.: H controls all
prop. H can convey entire estate, incl. his rt. of survivorship, but can't defeat/sell W's rt. of
survivorship. H's Creditors therefore can reach all except W's rt. of survivor. W's Creditors can't
reach anything, not even her rt. of survivorship, since she can't sell it w/o H's consent.
2) H's and W's Creditors can reach all except the rt. of survivorship of the spouse not in debt
since that's what each spouse can convey alone.
Acts give W the rt. H had at c.l. to convey all but other spouse's rt. of surv.
Sawada v. Endo- Neither spouse can convey his/her interest (incl. rt. of survivorship) alone since
each owns the whole, so Creditors of either spouse cannot reach any property. The interest of a
husband or wife in a tenancy by the entirety is not subject to the claims of his or her
individual creditors during the joint lives of the spouses.

Creditors can reach only rt. of survivorship of debtor spouse since in these sts. those are alienable.
See Sawada dissent- since H had rt. to alienate rt. of surv. at c.l., so does W now because of the Acts.
Eg. husband and wife TBE, and husband was in debt. The creditor can’t get money back through
TBE because of wife’s interest. However, if wife died, the ownership contributed to husband alone,
the creditor can get money back from the property. On the contrary, if husband died, the creditors
still can’t get money back because the property because wife’s individual property.

Addition difference with joint tenancy:

Cotenancy limited to a married couple.
A. The surviving spouse succeeded to the shared of the deceased spouse. = Joint
tenancy with right of survivorship
B. Joint tenant was considered to own a separate share for some purposes, but a tenant by the
entirety had no separate ownership interest.

C. Severance generally requires the consent of both spouses or the ending of the marriage by divorce.
The estate cannot be served by one spouse acting alone, and a partition is unavailable unless
there is a divorce.

Eg. Property division upon divorce in a community property state considers a variety of equitable
factors, but the length of the marriage is one of the most significant factors because it indicates
how long the parties were involved in a partnership that resulted in the sharing of their economic
assets.

A creditor cannot reach property held as tenants by the entireties when the debt is owed just by one
spouse. Court: if we were to select between a public policy favoring the creditor of one of the
spouses and one favoring the interests of the family unit, we would not hesitate to choose
latter.

Partition
a. Terminate a co-ownership relationship
b. If the owners have conflicts that they cannot resolve, a judicial partition is available.
c. In-kind division
d. Order the property sold and allocate the proceeds
Note: the owner of a future interest that is not even vested is not entitled to ask a court to partition
property

Ask court to dissolve ownership

-By express agreement terminating co-tenancy.
-EQUITABLE action.
Notes: When parties unable agree on how to divide the prop. or proceeds, partition available to
ten. in common and jt. ten., but not ten. by the entirety since they're one entity.
-Each ten. gets his/her share (e.g. if x paid 2/3 of the price of the land, probably seen as entitled to
2/3 unless intended gift of 1/6 to other ten. so they'd have 1/2 each).

(a) Physical partition (partition in kind)

Partition in kind is fairly easy if there is an undeveloped tract of land with all parts of equal
 value.so divided into sub-parts.
(b) Sale and division of proceeds
To sale and division of proceeds, must meet following: 1) partition in kind is not convenient; (2) the
sale will result in the promotion of at least one of the parties’ interests; and (3) the sale will not
prejudice the interests of the other parties.
(c)
Johnson v. Hendrickson- If phys. partition will significantly reduce the value of the land such that the
parties could get more $ from selling the whole and dividing the proceeds than they could get from
dividing the land and then selling, ct. will sell the land.
Policy- fairness to the parties, most efficient use of the land as judged by market value of the land.
Improvements: As to whether a party that had expended $ to improve the land before partition is
entitled to compensation for them upon partition, c.l. said no, unless other ten. consented to such
improvements or benefitted/will benefit from them.
But modern rule is to give the party the value added, but not the expenditures.
Case: Ark land co, v. Harper
The economic value of property is not a decisive factor in determining whether to partition
in kind or by sale. if non-economic interest in the land would be prejudiced if the land is
partitioned by sale, then no sale.

Ouster:
An ouster is present when a cotenant engages in acts of possession or other conduct that is
inconsistent with the rights of other cotenants. Eg. A ordered b to leave.
-When co-ten. or lessee of a co-ten. "ousts" another co-ten., ousted co-ten. has rt. to his share of
the reasonable rental value of the leased land, not the actual rent paid by a lessee (as in
accounting). “credit”
a. On a sale of commonly owned property, an owner who has paid less than his pro-rata share of
operating and maintenance expense of the property, must account to co-owner who has
contributed more than his pro-rata share, and that is true even if the former had been out of
possession and the later in possession of the property.
b. Ouster suggests an affirmative physical act, even a reprehensible act (reprehension: a
comment expressing fault, condemn etc).
The obligation of the occupying cotenant to pay rent may arise in the absence of actual
ouster when the realities of the situation, without there being any fault by either
cotenant, prevent the cotenants from sharing occupancy.
Note: constructive ouster? Definition: Occurs when co-tenants, through no direct fault of
their own, cannot reasonably live together on the same property and one moves out.

Severance
A joint tenant with a right of survivorship can freely transfer his share during the lifetime of the
owner.
Under the modern approach, a tenant can transfer from herself as a joint tenant to herself as a
tenant in common to produce the same result.

Eg. a, b, c joint tenancy a house. When a transfer her interest to another party, d, d possessed the
1/3 share interest, tenancy in common with b and c; however, b and c are still in joint tenancy.
After b died, although b has will that leaves his property to e, c as joint tenancy with survivorship,
get the b’s 1/3 share of the house and thus 2/3 share and tenancy in common with a.

Family property law

1. the law assumes that spouse do not share property, unless they take title as co-owner.
2. If a married person dies, most states have a separate property system. The person who
dies is the sole owner of any property in his name, or if an asset is co-owned, then the
particular rules of the coownership structure apply.
Divorce
Equitable division of property.
Spouse often co-own some property even if title is in just one spouse’s name.
Dual classification:
Marital property and separate property.
When the separate title system produced results that were thought to be inequitable, the court
awarded alimony.
Alimony is not as a claim on wealthier spouse’s property but as a personal obligation of that
spouse.
Reimbursement alimony.
Separate property: property acquired by a spouse prior to the marriage and gifts (including
inheritances and devises) made specifically to that spouse during he marriage. Everything else,
including income earned by either spouse during marriage, is marital property.
To test whether the professional degree is marital property is to see whether the spouse did
materially contribute toward another party’s future advancement
Martial property: all property acquired after the date of marriage until the end of the relationship
Hotspot states: even property that was owned by one spouse before marriage and kept in that spouse’s
name alone is subject to division.

Case: harper v. haper

When property is acquired by and expenditure of both marital and nonmarital property , the property is
characterized as part nonmarital and part marital so that a spouse contributing nonmarital property is
entitled to an interest in the property in the ratio of the nonmarital investment to the total nonmarital
and marital investment in the property.

At divorce, community property was same as marital property.

Community property
Common law marriage: unmarried couple
Community property starts from the premise that the marriage is an economic partnership. All
income earned during marriage belongs to both partners equally, regardless of which spouse
does the work or receives the income.
Notes: the manner in which the couple holds to property doesn’t matter. It makes no difference
if one spouse holds record title to an asset, such as an automobile or a bank account.
All income earned by one spouse from her employment while the couple is married is community
property. The proceed from it is also community property.
## as along as they are residents of a community property state. It doesn’t matter if the property
one spouse owned is a community property or not.
Upon divorce, some states direct the property to be divided equally, while others require an
equitable distribution. Importance: the earning capacity of each spouse is such an equitable
factor that is more likely to be considered by courts. Earning capacity is more considered by
the court than spouse’s household responsibility.
Community property states limited the ability of each spouse to engage in non-wasteful use of
the married couple’s assets.
Separate property:
1. all premarital property
2. gifts (inter vivos: gift made during lifetime; and testamentary) one to one spouse
3. inheritances

Professional degrees as marital Property

Case: O brien v. Obrien
In making an equitable distribution of marital property, the court considers any direct or indirect
contribution to the acquisition of the property. Mrs. O’Brien put her career on hold to assist Mr.
O’Brien in acquiring his medical license. Mr. O’Brien was in school for almost their entire marriage and
during that time, Mrs. O’Brien substantially contributed to the couple’s living expenses, thus affording
Mr. O’Brien the opportunity to attend school and focus on his studies.

If there'd been other marital assets, W's contribution to H's educ. could've been taken into acct. in
*equitable distr.
-Alimony- Also, if W had asked for alimony, fact that she contributed to H's educ./earning capacity
could've been taken into acct.;
2)Reimbursement alimony- restitution remedy, H must pay W the amt. she contributed to H's
educ., plus? equitable portion of amt. he could've earned if had worked instead;
3)O'Brien v. O'Brien (minority of sts., incl. NY)- med. license is marital prop. subj. to eq. distr. under
NY statute, spouse entitled to equitable portion of the value of the enhanced earning capacity the
degree affords above what could be made otherwise.
Rationale- Rehabilitative maintenance not enough since W sacrificed opportunity to educate
herself, and marriage is partnership such that W should get a share not out of need as w/
alimony but because it was partnership.
If assume dr. going to take high-paying job rather than lower-paying job servicing the poor,
are restricting his/her options.

Alimony?- now viewed as "rehabilitative alimony" to get spouse support 'til can get skills to enter
job market, temporary help so W can be independent, not dependent as w/ alimony. Also called
maintenance.
*Policy- Effect of eq. distr. and new alimony system-
W hasn't put time during marriage into gaining marketable skills. So if she doesn't get a share
of H's earning capacity which was facilitated because W took care of the home and children
through alimony, she's screwed. Viewing prof. degree as marital prop. would help.

Rts. of unmarried couples (contract v. status)

Do work other than just sexual activity.
The majority of states merely recognize that cohabitants may make claims that are generally
available to any one in civil law. Specifically, claims for breach of contract, property claims such as
partition for co-owner and a claim in equity for unjust enrichment are widely recognized.
Minority state: common law marriage
Requirements: a. intent to be a married couple. B. behavior like a married couple, including
holding out to public as spouse.

Watts v.watts
Unmarried cohabitants may each be entitled to a share of the wealth jointly accumulated during the
cohabitation.
The contract will not be unenforceable on the basis of public policy so long as there was some consideration
other than sexual activity.
Additionally, a claim for unjust enrichment may be proper when (1) a benefit is conferred on a party, with (2)
knowledge or appreciation of the benefit, and (3) the party unjustly accepts or retains the benefit.
Lastly, partition is a claim for division of any property that is jointly held. When parties act jointly financially
and socially while living together, it is strong evidence that they intended to share property equally