spouse when domiciled in a separate property jurisdiction is treated as community property if it would have been characterized as community property if the spouse had been domiciled in the community property state 13. Migrating Couples 1. Character assets at the time of acquisition is determined according to the law of the state of marital domicile at the time the property is acquired
1. Once initially characterized the ownership does not change when the properties change their domicile, unless both parties consent to the change in ownership 2. When a person dies the law of the decedent’s domicile at death governs the disposition of personal property AND the law where the land is located governs the disposition of land 14. Management of Community property 1. Both spouses now have a right to manage CP 2. Both spouses are typically required to join in transfer of mortgages of community real property 3. Manager of CP has role as fiduciary-must manage property for benefit of community 4. Gifts of managing souse may be set aside, however any bona fide purchaser from the spouse having a right to manage the property is protected 5. Liability to creditors follows management and control 15. Mixing Community property with Separate Property 1. Inception of right 1. Character of the property is determined at the time the spouse signed the contract 1. If signed before the marriage, the property remains separate to that spouse 2. Community is entitled to a return of community payments plus interest 2. Time of vesting 1. Title does not pass to spouse until all of the installments are paid (becomes community property is paid for with community funds and paid off during marriage) 3. Pro rata apportionment 1. The community payments "buy-in” a pro-rata share of the title 16. Marriage 1. Historically there were two primary criterion for state recognition of marriage 1. Legal age 2. Union between a man and a woman 2. Historically the legal incidents of marriage could be obtained only through marriage (in some instances, some but not all, incidents of marriage can be obtained by an explicit contract between the parties 17. Legal incidents of marriage 1. Federal benefits that flow from marriage include joint income tax filing, immigration benefits, social security benefits, intestacy rights, Pretermission rights, Right to hold property as tenants by the entirety, Right to be included as a spouse, on the partner’s medical policy 6. Leasing Real Property 1. Fair Housing and Discrimination 1. The Federal Fair Housing Act of 1968 significantly restricts a private property owner’s
right to exclude others 1. Prohibits discrimination based on 1. Race 2. Color 3. Religion 4. Sex 5. National Origin 6. Disability 7. Familial Status 8. (Some states have gone further to include discrimination based on marital status and sexual orientation) 2. Proving Discrimination under the Fair Housing Act 1. Unless π can bring direct evidence of discrimination, π must establish a prima facie case of discrimination by showing 1. Π is a member of a protected class and ∆
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- Fall '08
- Common Law, Future interest