PROPERTY (Section 1)
Spring Semester 2013
Severance of Joint Tenancy
Pages 344-357

1. Assume that Bowman and his father own land as joint tenants. Elaine (one of Bowman's students) obtains a judgment against him for intentional infliction of emotional distress, and forces an execution sale of Bowman's interest in the land (at the execution sale, Elaine acquires Bowman's interest in the land for a price equal to the amount of the judgment). Does this sever the joint tenancy and destroy Bowman's father's right of survivorship? Why or why not?

2. Again, assume that Bowman and his father own land as joint tenants. There is a modest home on the land. Bowman's father wants to live in it, and Bowman and his father enter into an agreement that Bowman's father will be entitled to exclusive possession of the home. Does this sever the unity of possession and destroy the right of survivorship? Why or why not?

3. Harms v. Sprague demonstrates the traditional "four unities" approach to the problem of severance. Consider the following questions about Harms:

a. Do you believe John Harms intended that granting a mortgage of his interest in the land to Simmons would terminate the joint tenancy that existed between he and his brother William? Why or why not?

b. Which approach — the "title theory" of mortgages or the "lien theory" of mortgages — makes more sense, both generally and as applied to this dispute?

c. How would you have advised Simmons differently, if you had been representing him in conjunction with this situation?

4. Mann v. Bradley demonstrates the willingness of some recent decisions to abandon the traditional strict "four unities" approach in favor of an "intent" approach. Consider the following questions about Mann:

a. The court concludes that a reasonable person in the position of Ms. Mann would not have intended to continue to hold the home as a joint tenant with her husband following their divorce. Is this a sensible conclusion? Why or why not?

b. Could the court have reached the same conclusion (that the joint tenancy was severed) while still applying the traditional "four unities" rule?

c. If the dispute in Harms v. Sprague had arisen in Colorado, where Mann v. Bradley was decided, how do you think the court would have resolved the dispute? Does the court's holding in Mann mean that whether the four unities exist is no longer relevant to whether a joint tenancy has been severed?

5. Note 3 (page 352) discusses the problem of "secret severance" and the California case of Riddle v. Harmon. In Riddle, W and H owned a home as joint tenants. W signed a deed that purported to convey her interest from herself as a joint tenant to herself as a tenant in common (a "severance" deed). She then placed the deed in her desk, telling only her daughter (not her husband). After W's death, her daughter claimed an interest in the land under W's will, arguing that the severance deed (which the daughter produced) terminated the joint tenancy and destroyed the right of survivorship. Subsequent to Riddle, the California legislature adopted the statute quoted in note 3 (page 352) — a statute which would have defeated W's claim if it had been in effect at the time of the litigation. Why do you think the legislature thought that the "secret severance" problem needed to be addressed at all? [What hints can you discern from the provisions of the statute?]

6. Looking at the situation in the Lawyering Exercise starting on page 355, what would you say to Diane about the effectiveness or advisability of her estate planning efforts?