Concurrent or Common Ownership

Restraint on partition or conversion of joint tenancy interest to tenancy in common is an invalid restraint on alienation

/ Concurrent or Common Ownership

A deed prohibiting joint tenants from suing for partition or converting their joint tenancy interest into a tenancy in common without the consent of the other owners was an invalid restraint on alienation and unenforceable. Mindock v DuMars, 2022 WL 1410017, 2022 US App LEXIS 12044 (10th Cir 2022). The court did not accept the argument that the restraint was reasonable as a means to keep ownership of the home in the family when the joint tenants were all the grandchildren of the grantor.

Short-term rentals do not violate “residential use only” covenant

/ Concurrent or Common Ownership, Condominiums and Homeowners Associations, Leaseholds, Real Estate Transactions, Servitudes

The Mississippi Supreme Court has held that short term rental of property is not a commercial use that would violate a covenant limiting land to residential purposes. Lake Serene Prop. Owners Ass’n v. Esplin, 334 So.3d 1139 (Miss. 2022). There has been some disagreement among state courts on this question because the use of property as an Airbnb or other short term rental can be viewed as changing property to “hotel” use, at least when the owner does not share occupancy with the guest.

Physical partition denied when the sale value significantly exceeds the value of the separate parcels despite a co-owners attachments to the land

/ Concurrent or Common Ownership

The Nebraska Supreme Court held that partition by sale is preferred to physical partition if the fair market value of the land as a whole exceeds the market value of separate parcels even if a co-owner objects to the sale because of sentimental attachments to the land. FTR Farms, Inc. v. Rist Farms, Inc., 942 N.W.2d 204 (Neb. 2020). A somewhat similar case came out the opposite way in Ark Land Co. v. Harper, 599 S.E.2d 754 (W.Va. 2004)

Proceeds of partition by sale divided according to ownership interests without any credit given to co-owner whose funds were used to buy the property

/ Concurrent or Common Ownership, Estates and Future Interests, Real Estate Transactions

Because the Texas partition statute requires the proceeds of a partition sale to be divided “according to [the owners’] just rights therein,” joint tenants were entitled to 50% of the sale proceeds even though one of the co-owners had used his own funds to purchase the property. Gallagher v. Townsend, 443 P.3d 847 (Wyo. 2019). At the same time, the court would be entitled to adjust the amounts each party received to reflect the fact that one co-owner had paid more of the property taxes.

Will devising home to testator’s four children and his widow that allowed her to “remain” in the home “for as long as she desires” gave her a tenancy in common interest with protection from removal by partition

/ Concurrent or Common Ownership, Restraints on Alienation, Wills and Inheritance

In an older case that came to my attention, the Massachusetts Supreme Judicial Court held that a will that gave a widow the right to “remain” in the home “for as long as she desires” did not create a life estate when her interest was shared with the decedent’s four children. Hershman-Tcherepnin v. Tcherepnin, 891 N.E.2d 194 (Mass. 2008). Rather, the court interpreted the conveyance to create tenancy in common interests shared equally by the five while giving the widow immunity from being forced from the house by partition. Significantly, the court did not consider that restraint on partition to constitute an unreasonable restraint on alienation. However, since she had brought an action to partition the property, she waived the right to be protected from ouster through partition sale.

Tenancy by the entirety interests can be sold to satisfy debts of one spouse

/ Concurrent or Common Ownership, Marital Property

A bankruptcy court in Massachusetts has ruled that state tenancy by the entirety law is preempted by  the Bankruptcy Code, §363(h)–(j), interpreting federal law to authorize the forced sale of tenancy by the entirety property over the objections of the non-debtor spouse to satisfy the debts of the debtor spouse. Desmond v. Green, 2018 Bankr. LEXIS 3136 (Bankr. D. Mass. 2018).

Seventh Circuit holds that the Fair Housing Act prohibits discrimination based on sexual orientation

/ Antidiscrimination Law, Concurrent or Common Ownership, Fair Housing Act, Gender Identity, Sexual Orientation

Extending a former precedent concerning employment discrimination, Hively v. Ivy Tech Community College of Indiana, 853 F.3d 339 (7th Cir. 2017), a three judge panel of the Seventh Circuit has held that discrimination based on sexual orientation in housing is a form of sex discrimination prohibited by the Fair Housing Act. Wetzel v. Glen St. Andrew Living Community, LLC, 2018 U.S. App. LEXIS 24193 (7th Cir. 2018). The case involves a continuing care retirement community which failed to protect one of its residents from harassment by other residents directed at her because she is a lesbian. The court held that a landlord is liable for tenant-on-tenant harassment when it has actual notice of it but chooses not to take any reasonable steps to stop that harassment. Harassment is outlawed if it is severe or pervasive and that is the case where the harassment objectively interferes with teh enjoyment of the premises …

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Permanent rights of refusal for tenancy in common interests owned by family members held void as unreasonable restraints on alienation

/ Concurrent or Common Ownership, Estates and Future Interests, Restraints on Alienation

A Massachusetts court has held that permanent rights of refusal applying to tenancy-in-common interests were void as unreasonable restraints on alienation. DiSchino v. Delanson Circle Holding, 2018 Mass. Super. LEXIS 67 (Mass. Super. Ct. 2018). The court noted that the state had a strong policy against unreasonably long restrictions on the alienability of land but that reasonable restraints are valid and enforceable. Rights of first refusal are not unreasonable if they are not for a fixed price or a long period. Here, however, the rights of first refusal owned by co-owners existed in perpetuity. That meant that even after an interest was transferred to another owner, it would remain subject to the right of first refusal whenever that new owner decided to sell the owner’s interest. The permanency of the restraint on alienation (it would effectively last forever) doomed it. In contrast, a restraint on partition of tenancy-in-common interests might …

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Tree may be removed by owner of property where it first grew even if it grew to encroach on neighboring land and the neighboring owner does not want it removed

/ Adverse Possession, Concurrent or Common Ownership, Easements, Trespass

The Colorado Supreme Court has held that an owner may remove a tree on her own land even if it has grown over the borderline onto neighboring land even if the neighboring owner objects to removal of the tree. Love v. Klosky,2018 CO 20, 413 P.3d 1267 (Colo. 2018). In contrast, a border tree that was planted on the border itself becomes the joint property of both neighbors and cannot be removed with the consent of both of them.

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