Saturday review

• The daughter in fee simple subject to divestment by the birth of a child

• The daughter in fee simple absolute

• The mother's friend's nephew

• The mother

Answer explanation

• Harvey & Naomi

• Harvey

• Harvey & Larry as tenants in common

• Harvey & Larry as joint tenants

Answer explanation

• A vested remainder subject to open

• A contingent remainder

• A vested remainder

• No interest

Answer explanation

A farmer owned her land in fee simple absolute. The farmer conveyed the land in a deed that stated that she was conveying the land to her sister “in fee simple, but if she ever runs for a political office, then to [the farmer’s brother].” Immediately following this conveyance, what interests do the farmer’s sister and brother have in the land?

• The sister has a determinable fee simple subject to an executory limitation; the brother has a springing executory interest.

• The sister has a determinable fee simple subject to an executory limitation; the brother has a shifting executory interest.

• 
  The sister has a conditional fee simple subject to an executory limitation; the brother has a springing executory interest.

• The sister has a conditional fee simple subject to an executory limitation; the brother has a shifting executory interest.

Answer explanation

The conveyance to the sister includes the conditional phrase “but if,” signaling that her interest is conditional (here, conditioned on an event not happening). Therefore, answer options A and B are incorrect, because a determinable interest uses durational rather than conditional words. As for the brother’s interest, a shifting executory interest, when it materializes into possession, divests a grantee of an estate; a springing executory interest divests the grantor of an estate. Here, because the brother’s interest would divest the sister of her fee simple, and the sister is a grantee, the brother possesses a shifting executory interest.

Two investors purchased property together. The first investor contributed 70 percent of the purchase price, and the second investor contributed 30 percent of the purchase price. The deed of conveyance stated that the two investors would take the property as tenants in common, but it did not specify each party’s respective share of ownership in the property. What percentage ownership and right to possess and use the land does the first investor possess?

• A 70 percent ownership interest, and a right to possess and use 70 percent of the land.

• A 70 percent ownership interest, and a right to possess and use the entire land.

• A 50 percent ownership interest, and a right to possess and use 50 percent of the land.

• A 50 percent ownership interest, and a right to possess and use the entire land.

Answer explanation

Here, the first investor contributed 70 percent of the purchase price. There is no evidence of a family relationship between the two investors or of any intent to make a partial gift of the purchase price in order to achieve equal percentage ownership. Therefore, the first investor has a 70 percent ownership interest in the property. Both investors, as tenants in common, will have the right to possess and use the entire land.

Two cousins owned a farm as joint tenants with right of survivorship. On June 1, the older cousin executed a valid will leaving his half of the land to his daughter. On June 5, the younger cousin executed a valid will leaving his half of the land to a local school. On June 10, the cousins were in a bad car accident. As a result of their injuries, the older cousin passed away on June 11, and the younger cousin passed away on June 18.

At this point, who owns the land, and in what percentage?

• The older cousin’s daughter owns all the land.

• The school owns all the land.

• The older cousin’s daughter and the school each own half the land as tenants in common.

• 
  The older cousin’s daughter and the school each own half the land as joint tenants with right of survivorship.

Answer explanation

A joint tenant’s interest in land vanishes upon his or her death, and the relative percentage ownership interests of any other joint tenants proportionately increase. 
Here, the cousins owned the land as joint tenants with right of survivorship. When the older cousin passed away on June 11, his ownership interest disappeared immediately and did not pass through the older cousin's will. The percentage ownership of the younger cousin increased proportionately, such that the younger cousin was the sole owner of the farm. When the younger cousin died on June 18, his sole ownership interest in the farm passed to the school under his will.

Two sisters bought a piece of land from their father for $100,000. They took title to the land together under a deed of conveyance that did not explicitly state what kind of concurrent ownership they held. The older sister died shortly after the sisters took possession of the land. In her valid will, the older sister left her share of the land to a friend.

Following the older sister’s death, who owns what interest in the land?

• 
  The younger sister and the older sister’s friend each own a 50-percent interest as tenants in common.

• The younger sister and the older sister’s friend each own a 50-percent interest as joint tenants with right of survivorship.

• The younger sister owns a 100-percent interest in fee simple absolute, because the older sister’s bequest to her friend failed.

• The father owns a 100-percent interest in fee simple absolute, because the deed was invalid.

Answer explanation

When a deed is unclear on the type of concurrent ownership or the percentage shares of the cotenants, most courts presume that the co-tenants share the property in equal shares as tenants in common. Therefore the sisters took equal 50-percent interests in the land when they bought it from their father. A tenant in common may transfer his or her interest in land to another, and such interest is devisable and inheritable. Accordingly, when the older sister died, her share of the land passed to her friend under the terms of her will, and the friend now shares the land with the younger sister as tenants in common, each with a 50-percent interest.

A grantor owned property as the sole owner. The grantor wished to create a joint tenancy with right of survivorship with his girlfriend. The grantor conveyed all interest in the property to a third party, who then conveyed the property by deed to the grantor and the grantor’s girlfriend. The language of the deed conveying the property from the third party to the grantor and his girlfriend did not specify the form of ownership that the grantor and his girlfriend would have in the property, nor did it specify the percentage ownership interest or specific rights that the grantor and his girlfriend would have in the property.

Is the conveyance sufficient to create a joint tenancy with right of survivorship?

• Yes, because it satisfied all four unities.

• Yes, because the use of a straw man to satisfy the four unities creates a presumption of a joint tenancy with right of survivorship.

• No, because the four unities were not met because the deed did not state that the grantor and his girlfriend would have equal ownership percentages and identical rights regarding the property.

• No, because the deed did not indicate an intention to create a joint tenancy with right of survivorship.

Answer explanation

When property is conveyed to two or more persons, they are presumed to take as tenants in common. This presumption can be overcome, but only with a very clear indication that the grantor intended to convey a joint tenancy with right of survivorship, which must usually appear in the instrument of conveyance itself. Here, the conveyance from the third party to the grantor and his girlfriend did not specify that it was intended to create a joint tenancy with right of survivorship. A court will therefore find that the grantor and his girlfriend own the property as tenants in common, not joint tenants with right of survivorship.

A brother and sister owned a beach property together as joint tenants with right of survivorship. On March 2, the brother borrowed $50,000 from a bank, secured by a mortgage attaching to the brother’s interest in the property. The brother died on December 30, leaving everything he owned to his daughter. At the time of his death, the brother had not yet paid off the mortgage. The property is located in a lien-theory state.

Who now owns the property?

• The sister owns the property.

• 
  The sister and the brother’s daughter own the property as tenants in common.

• The sister and the brother’s daughter own the property as joint tenants with right of survivorship.

• The sister and the bank own the property as tenants in common.

Answer explanation

In a lien-theory state, the creation of a mortgage only gives the lender a security interest in the property and does not actually convey legal title. The mere granting of a security interest is not enough to sever the joint tenancy, and therefore the right of survivorship among joint tenants will survive the mortgage. Accordingly, when the brother took out a mortgage on the property, the joint tenancy was not severed. The right of survivorship remained, and when the brother died, his ownership interest vanished. At the moment of the brother’s death, the sister, as the surviving joint tenant, became the sole owner of the property.

Three people owned property as joint tenants with right of survivorship. The first person mortgaged his interest in the property. The second person died while the mortgage was in effect. The third person then died while the mortgage was in effect.

In a jurisdiction that follows the title theory for mortgages, what is the current status of the property?

• The first person owns the entire property, subject to the mortgage; the second person’s heirs and the third person’s heirs own nothing.

• The first person owns a one-half interest in the property, subject to the mortgage; the second person’s heirs own nothing; and the third person’s heirs own a one-half interest in the property.

• The first person owns a one-third interest in the property, subject to the mortgage; the second person’s heirs own a one-third interest in the property; and the third person’s heirs own a one-third interest in the property.

• The first person owns a one-third interest in the property, subject to the mortgage; the second person’s heirs own nothing; and the third person’s heirs own a two-thirds interest in the property.

Answer explanation

Here, because the jurisdiction follows a title theory for mortgages, the first person’s encumbrance of his interest in the property with a mortgage will serve to sever the joint tenancy with right of survivorship and convert it into a tenancy in common. However, it will not sever the joint tenancy with right of survivorship between the second and third people, who continue to be joint tenants as to one another. Therefore, when the second person died, the third person obtained the second person’s entire interest in the property. After the death of the second person, the third person owned a two-thirds interest in the property as a tenant in common with the first person, who owned a one-third interest. When the third person died, his interest passed to his heirs, because he was a tenant in common with the first person, not a joint tenant with right of survivorship.