Majority view mortgages seen as lien on title and 1 JTs execution of a mortgage

Majority view mortgages seen as lien on title and 1

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Majority view: mortgages seen as lien on title and 1 JT’s execution of a mortgage on his interest does not cause a severance. Severance occurs when mortgage is foreclosed and the prop sold. 2. Minority view: mortgage is a transfer of title, and the transfer destroys the unity in the title and severs the JT. B. Leases (in JTs) a. Some states: when 1 JT leases her interest in jointly held prop, the lease destroys the unity of interest and should effect a severance b. Other states: JT is not destroyed, but merely temporarily suspended for length of the lease. c. Death of Lessor: (1) Some states hold that lessors own right of possession would cease on her death, and so would right of lessee (2) Other states hold that Lease operates as a “temporary severance” and the remaining JT’s survivorship rights are postponed until the end of the lease. C. Incidents of Co-Ownership 1. Rents and Profits -In most jurisdictions, cotenant in possession has the right to retain profits gained by her use of the prop. Cotenant in possession does not need to share profits w/ cotenants out of possession, nor reimburse them for her use unless she has ousted them. -If a cotenant brings in a third party, the cotenants out of possession have a right to share in the rents from the 3 rd parties and from profits derived from the use of the land that reduces its value (i.e.: removal of minerals, etc.) 2. Ouster -Under unity of possession, each cotenant is entitled to possess and enjoy the whole of the prop subject to the equal right of another cotenant. If 1 tenant wrongfully excludes another cotenant from possessing the whole or any party of the whole, there’s an ouster, and the ousted cotenant can receive the fair rental value of the prop for the time he was wrongfully deprived of possession 3. Remedy of Partition -JT or TC has right to a judicial partition either: 1. In kind: division of the tract into parcels, OR 2. By sale: sold, and division of the proceeds (in accordance w/ ownership interests as modified by permitted recoupments for improvements, repairs, taxes, etc.) 4. Accounting - An equitable proceeding to compel a cotenant to account for and pay over money owed to another cotenant 5. Expenses for preservation of prop a. Repairs -Cotenant who pays more than her share of cost of necessary repairs is entitled to a contribution from other cotenants in actions for accounting or partition -Majority view: Cotenant can compel contribution provided she has notified the other cotenants of the need for repairs -Minority view: Since no cotenant has a duty to make necessary repairs, cotenant who makes such repairs can’t bring an action to compel others to pay b. Improvements -Generally, there is no right of contribution for the cost of improvements, nor can they be set off in an action for accounting. Only in an action for partition can they be recouped -If prop is partitioned, then improved part goes to tenant who made the improvements 19
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c. Taxes and Mortgages -Each cotenant has a duty to pay her share of taxes and payments due on mortgages of the entire prop. Tenant who is not in sole possession can pay takes and mortgage payments
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