Questions & Answers Series

Property Topics: Concurrent Owners; Estates in Land; Nature of Property Rights; Personal Property

Concurrent Owners

Question:

In 1955, three brothers – Alex, Bobby, and Carlos – purchased ten acres of land as joint tenants.  Four years later, Alex got married, and he conveyed all of his property to his new wife Doris.  Next, in 1970, Bobby died, devising all of his property to his three children, Eduardo, Francesco, and Gloria.  Finally, in 2002, Carlos and then Eduardo died, with Eduardo’s wife Henrietta inheriting all of his property and with Carlos devising his interest in the ten acres of land to Gloria, his favorite niece. 

Who owns what interest in the ten acres of land?

Answer:

Gloria owns a two-thirds interest in the ten acres and Doris owns a one-third interest.  That occurred as follows:  When Alex conveyed his property to his wife Doris in 1959, he destroyed the joint tenancy by severing the unity of time.  As a result, in 1959 Bobby and Carlos owned two-thirds as joint tenants between themselves, and Doris owned one-third of the land as a tenant in common.  When Bobby died in 1959, his interest in the land automatically shifted to Carlos by the right of survivorship, so Carlos then owned a two-thirds interest in the land.  Next, upon the death of Carlos, his two-thirds interest was devised to Gloria.  Eduardo did not own an interest in the property, so his death did not affect the property.

Estates in Land

Question:

Jane McCartney has given land to each of her children when they got married. Her youngest daughter Julie is not married, but she has been living with Henry for five years, and they have two children together. So, in 2001, Jane conveyed ten acres "to Julie and Henry as tenants by the entirety, but if they ever get divorced, then to Julie." In 2003, Julie and Henry got married. 

Upon her marriage, one of the interests that Julie owns in the land is:

(A) A tenancy by the entirety.

(B) A joint tenancy or a tenancy in common, depending upon the jurisdiction.

(C) A contingent remainder.

(D) A springing executory interest.

Answer:
Answer (B) is the correct answer. Jane's attempt to convey a tenancy by the entirety to Julie and Henry failed because you cannot own property in a tenancy by the entirety if you are not married. An unsuccessful effort to create a tenancy by the entirety will either result in a joint tenancy or a tenancy in common, with different jurisdictions reaching different conclusions.

The fact that Julie and Henry got married two years later does not change the status of the estate that Jane conveyed – and thus Answer (A) is incorrect. Answer (C) is incorrect because Jane gave Julie an executory interest if she and Henry ever got divorced, not a contingent remainder. Answer (D) is incorrect since that executory interest is shifting, not springing, because it would divest a transferee instead of Jane. The shifting executory interest satisfies the Rule against Perpetuities using either Julie or Henry as the measuring life.

Personal Property

Question:

Which of the following is personal property?

(A) A copyrighted book on the wines of California.

(B) The idea for a new procedure for cultivating grapes.

(C) A newly planted vineyard.

(D) The building housing a winery's restaurant.

Answer:
Answer (A) is the correct answer. Intellectual property is a type of personal property, and copyrighted works are a type of personal property.

Answer (B) is incorrect because an idea itself is not property. An idea cannot be copyrighted or patented; something more is required to convert the idea into an actual writing or invention before the law recognizes something as property. Answer (C) is incorrect because the law distinguishes crops as real property versus personal property depending upon the status of the crops. Crops like a newly planted vineyard that are still receiving nourishment from the land are regarded as part of the land; crops that are ready for harvest are treated as personal property rather than as part of the land. Answer (D) is incorrect because a building is part of the real property on which it is located. 

The Nature of Property Rights

Question:

The aphorism that "possession is nine-tenths of the law" is best disproved by the law of:

(A) Avulsion.

(B) Accretion.

(C) Accession.

(D) Adverse possession.

Answer:
Answer (A) is the correct answer. The law of avulsion states that land which is added to waterfront property as the result of a sudden action such as a hurricane or an earthquake does not become the property of the riparian owner. Instead, land added by avulsion belongs to the government. This is so even though the riparian landowner is likely to have treated the new land exactly like the preexisting land, by possessing them both alike.

Answer (B) is incorrect because land created by accretion does belong to the riparian owner. Accretion results from the gradual, imperceptible addition of land to the waterfront property already owned by the riparian owner. Possession does produce ownership in such circumstances. Answer (C) is incorrect because the law of accession, which addresses property that has been accidentally confused or mixed together, determines ownership based upon the equitable circumstances of particular cases. Possession may result in ownership of property obtained by accession, but it may not, too. Answer (D) is incorrect because adverse possession is the best illustration of the law determining ownership based upon possession, even possession that displaces the original owner.