PROPERTY (Section 1)
Spring Semester 2013

Introduction to Concurrent Ownership
Pages 334-344

1. Suppose that Lambert and Bowman own a vacation home at the Lake of the Ozarks, as co-owners. Bowman wants to lease the home year-round, as he no longer has time to use it and wants the rental income so that he can cover his extensive gambling debts. Lambert does not want to lease the home year-round (he wishes to stay there for three two-week periods during the year; further, he doesn't like the idea of strangers using the home). Further, Lambert wants to build an additional garage onto the home to store his new Jaguar. Bowman doesn't want to add an additional garage. So Bowman files suit seeking a declaratory judgment seeking an order that would (a) compel Lambert to agree to lease the home and (b) enjoin Lambert from building the garage. How should a court respond to Bowman's complaint, and why?

2. In Smith v. Rucker/Cutler, Smith's son is arguing that the original deed created a joint tenancy in fee simple absolute. Rucker was arguing that the deed instead created a joint life estate, with Rucker and Smith each having an individual contingent remainder in fee simple (contingent on surviving the other). What's the legal and/or practical difference, if any, between a joint tenancy in fee simple absolute and a joint life estate with a contingent remainder in the survivor? Which way would you rather hold title with someone else — as a joint tenant in fee simple absolute, or as a joint life tenant with a contingent remainder in the survivor?

3. Which opinion in Smith v. Rucker/Cutler seems more persuasive to you —the court of appeals opinion or the supreme court opinion — and why?

4. Consider this question in conjunction with Smith v. Rucker/Cutler and the material in note 1 on page 342. Suppose 20 years ago, Nathan and Alice Palmer had purchased a home from First Bank, which had acquired the home in a foreclosure sale from its prior owner (who had defaulted on the mortgage). The deed from First Bank conveyed the home "to Nathan and Alice as joint tenants and not as tenants in common, to them and their assigns and to the survivor, and the heirs and assigns of the survivor forever." Later, Nathan and Alice divorced, and Nathan deeded his interest in the land to his sister Roxa. Shortly thereafter, Nathan died.

a. Can Alice now argue that she owns the home in fee simple absolute? If so, how could she make that argument, based on the language of the original conveyance?

b. How do you think the court should interpret the deed from First Bank, in terms of what estate(s) it conveyed to Nathan and Alice?

5. Consider the problems in note 3 on page 344. What interests are created by each conveyance, and why?