PROPERTY (Section 1)
Spring Semester 2013
Regulating the Relationship Between Cotenants; Partition
Pages 367-381

1. Suppose that Tony and Paulie own a home as co-owners. The police are investigating Tony in connection with a grisly series of murders, but lack probable cause for a search warrant for the home. Nevertheless, the police go to the home and ask Tony for permission to conduct a search of the home. Tony refuses this request. Paulie, however, grants the police permission to search the home. The police then push Tony aside, search the home, and the search discloses evidence that eventually results in Tony's arrest and conviction for three murders. Tony appeals his conviction, arguing that the police did not have consent to a warrantless search of the home. Should Tony's conviction be sustained, or reversed, and why? Should Tony's objection trump Paulie's consent? If so, is the court "rank-ordering" Tony's right to exclude as being more deserving of protection than Paulie's right to admit? Why or why not?

2. In 2000, Hansel and Gretel inherited a home from their father. Hansel is a lawyer with a practice in another state. Gretel moved into the home and begins occupying it as her personal residence. In early 2001, Hansel called her and asked her to put the house on the market; Gretel refused and said "I'm not selling my house." This disagreement prompted hard feelings between the siblings, who have not spoken since. For the next 13 years, Gretel lived in the home. In 2002, she added a new kitchen and master bedroom, using the proceeds of a loan that she got from her credit union. Each year, she paid all of the real estate taxes due on the home. In 2004, she replaced the roof. In 2010, she got married and moved into another home with her husband; she then leased the home to her friend Ted for $1500/month.

In March 2013, she filed a lawsuit against Hansel, seeking to quiet title to the home in fee simple based upon adverse possession. Is she entitled to judgment? Why or why not?

3. Same facts as Problem 2, except now assume that Hansel files a partition action. The house is sold and brings a price of $300,000. How should the court divide the proceeds? How should the court account for the following:

a. The benefit that Gretel got by living in the home without having to pay any rent to Hansel?

b. The taxes she paid?

c. The rents she collected from Ted?

d. The cost of the kitchen and bedroom?

e. The cost of replacing the roof?

4. Dan and Dave inherit a parcel of farmland. Dan (who is a farmer) adds the land to the parcels that he farms; Dave (who lives in another state) does not have anything to do with Dan's farming operation. For five years, Dan grows soybeans on the parcel, earning a total profit of $75,000 from the soybeans grown on that parcel. Does Dan have an obligation to account to Dave for any amount? Why or why not?

5. In Problem 4, suppose that Dan had also cut $20,000 worth of raw timber off of the property, used his own woodworking equipment to finish the timber, and sold it to a local contractor for $40,000. What amount, if any, does Dan owe Dave?

6. For more than 100 years, Joseph's family has farmed 640 acres of land. During his life, Joseph owned the land with his brother Earl and his sister Lynette. [Assume that the three of them inherited it from their father.] Earl helped Joseph with the farming activities; Lynette was disabled and lived in a home on the farm. Five years ago, Joseph died intestate; his heirs were his six surviving children. Two of those children (Joseph, Jr. and Susan) work with Earl to farm the parcel each year. The other four children (Al, Jane, Seth, and Dawn) have jobs, live in other states, have no interest in farming, and have not shared any of the expenses or profits of operating the farm. Currently, the farm has an appraised value of $2,560,000 (roughly $4,000 per acre). Last year, Seth, had an accident in which his negligent driving resulted in the death of Jack Smith, whose widow obtained a judgment against Seth for $1 million in damages. After discovering that Seth owned a 1/18th share of the farm, Smith's widow scheduled a judicial sale of the 1/18th share. At the sale, Steve Speculator purchased this 1/18th share for a price of $75,000. Steve Speculator immediately filed a partition action, joining Earl, Lynette, and the other 5 children of Joseph.

(a) Should the court order the land to be split up 6 ways — 1/3 to Earl, 1/3 to Lynette, and 1/18 each to Steve Speculator and Joseph's other 5 children? Or should the court instead order partition by sale?

(b) Suppose the court orders partition by sale. Should Earl, Lynette, Joe, Jr., Susan, and/or the other children have a right to "buy out" Steve Speculator's fractional interest, or should it be sold, with Steve Speculator getting the property if he is the highest bidder at the sale?

7. Suppose that Bowman, Lambert, and Esbeck decide to get into the business of investing in real estate. They put together $1.2 million in cash and use it to purchase an office building, which they are going to rent to tenants. The three of them take title to the building as tenants in common. They enter into an agreement which stated as follows: "The undersigned agree that neither they nor their heirs, successors or assigns, shall seek partition without unanimous consent."

One year later, Bowman lost the rest of his savings (all of which he had invested with Bernie Madoff). At the risk of losing his home, Bowman was in desperate need of cash. Rather than sell his prized collection of absurd historical costumes, Bowman instead filed suit seeking partition of the office building. Lambert and Esbeckl filed a motion asking the court to dismiss the partition action, based upon their agreement not to seek partition without unanimous consent.

(a) Should the court uphold the agreement and dismiss the partition action, or should it instead order a partition sale despite their agreement? Explain.

(b) How might you have advised the parties to draft their agreement to maximize the likelihood that a court would give effect to the agreement not to seek partition?