Property Law Question

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BeachedBrit
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Property Law Question

Postby BeachedBrit » Fri Dec 09, 2011 7:46 pm

Quick Question:

1. If you convey a fee simple absolute to someone and they subsequently get married, does it create a Tenancy By Entirety? I'm thinking (and hoping) no because it remains separate property?

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Judge Philip Banks
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Re: Property Law Question

Postby Judge Philip Banks » Fri Dec 09, 2011 8:00 pm

I don't think it would since they are not acquiring by the same title or at the same time (the unities).

BeaverHunter
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Re: Property Law Question

Postby BeaverHunter » Fri Dec 09, 2011 8:17 pm

No, no unity of time.

target
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Re: Property Law Question

Postby target » Fri Dec 09, 2011 8:20 pm

BeaverHunter wrote:No, no unity of time.


And no unity of instrument

BeachedBrit
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Re: Property Law Question

Postby BeachedBrit » Fri Dec 09, 2011 8:21 pm

Now, what about if it was conveyed to a married person, but specific.

Ex.
O to A

A is married to B at the time of O to A

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AreJay711
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Re: Property Law Question

Postby AreJay711 » Fri Dec 09, 2011 8:22 pm

There are actually no unities at all because that is non-marital property.

Unless... you convey to them as joint tenants and then they get married which must be what you mean. Idk.

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AreJay711
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Re: Property Law Question

Postby AreJay711 » Fri Dec 09, 2011 8:23 pm

BeachedBrit wrote:Now, what about if it was conveyed to a married person, but specific.

Ex.
O to A

A is married to B at the time of O to A


Once again there is a very good chance that is not even marital property.

target
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Re: Property Law Question

Postby target » Fri Dec 09, 2011 8:24 pm

BeachedBrit wrote:Now, what about if it was conveyed to a married person, but specific.

Ex.
O to A

A is married to B at the time of O to A


unless I miss something, I don't see how that would change the answer since the deed specifically says to A.

NJcollegestudent
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Re: Property Law Question

Postby NJcollegestudent » Fri Dec 09, 2011 8:39 pm

To the OP, a tenancy by the entirety is created when the original grantor re-conveys the property to the couple as such.

Unities are only for JT with right of survivorship, and in a tenancy by the entirety their comparable severing provisions are a divorce or if they sell to another.

BeachedBrit
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Re: Property Law Question

Postby BeachedBrit » Fri Dec 09, 2011 8:45 pm

That's what I was hoping for, just got out of an exam and either missed a lot of stuff on one of the big essay issue spotters or did pretty solidly, trying to confirm which. One more question...

Ex.
Father = A
Son #1 = B
Son #2 = C
Conveyance occurs through execution of A's will aka A just died.

A to B, but if B marries someone that isn't (insert religion here), then to C's grandchildren

After conveyance to B, he marries someone that isn't (insert religion here).

1) Traditional states - Class gift at end invalid because of RAP? Causes a fee simply absolute in B?
2) "wait and see" states - Just have to wait and see if class vests/closes?

Also, would it change it anything if you made C the brother of A, rather than the brother of B?

target
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Re: Property Law Question

Postby target » Fri Dec 09, 2011 8:46 pm

NJcollegestudent wrote:To the OP, a tenancy by the entirety is created when the original grantor re-conveys the property to the couple as such.

Unities are only for JT with right of survivorship, and in a tenancy by the entirety their comparable severing provisions are a divorce or if they sell to another.


I don't think the bold part is true. Also, the unities do apply to tenancy by the entirety, or at least that's how my prof. taught.

NJcollegestudent
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Re: Property Law Question

Postby NJcollegestudent » Fri Dec 09, 2011 8:48 pm

target wrote:
NJcollegestudent wrote:To the OP, a tenancy by the entirety is created when the original grantor re-conveys the property to the couple as such.

Unities are only for JT with right of survivorship, and in a tenancy by the entirety their comparable severing provisions are a divorce or if they sell to another.


I don't think the bold part is true. Also, the unities do apply to tenancy by the entirety, or at least that's how my prof. taught.



What i stated is that they have their own little categories of unities that must be met. I do not remember my professor saying anything else.
EDIT: I now see your bolded portion. I think if they sell to another person, it is destroyed as a TBYE is only for married couples.
But to the OP's question, the main benefit of a TBYE, is for creditor protection, unless both tenants are joined in debt.
Last edited by NJcollegestudent on Fri Dec 09, 2011 8:50 pm, edited 2 times in total.

target
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Re: Property Law Question

Postby target » Fri Dec 09, 2011 8:49 pm

BeachedBrit wrote:That's what I was hoping for, just got out of an exam and either missed a lot of stuff on one of the big essay issue spotters or did pretty solidly, trying to confirm which. One more question...

Ex.
Father = A
Son #1 = B
Son #2 = C
Conveyance occurs through execution of A's will aka A just died.

A to B, but if B marries someone that isn't (insert religion here), then to C's grandchildren

After conveyance to B, he marries someone that isn't (insert religion here).

1) Traditional states - Class gift at end invalid because of RAP? Causes a fee simply absolute in B?
2) "wait and see" states - Just have to wait and see if class vests/closes?

Also, would it change it anything if you made C the brother of A, rather than the brother of B?


If you made C a brother of A, then C might already have a living/breathing grandchild, so RAP will not apply.

target
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Re: Property Law Question

Postby target » Fri Dec 09, 2011 8:51 pm

NJcollegestudent wrote:
target wrote:
NJcollegestudent wrote:To the OP, a tenancy by the entirety is created when the original grantor re-conveys the property to the couple as such.

Unities are only for JT with right of survivorship, and in a tenancy by the entirety their comparable severing provisions are a divorce or if they sell to another.


I don't think the bold part is true. Also, the unities do apply to tenancy by the entirety, or at least that's how my prof. taught.



What i stated is that they have their own little categories of unities that must be met. I do not remember my professor saying anything else.
EDIT: I now see your bolded portion. I think if they sell to another person, it is destroyed as a TBYE is only for married couples.
But to the OP's question, the main benefit of a TBYE, is for creditor protection, unless both tenants are joined in debt.


Okay, I see what you are saying now.

03121202698008
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Re: Property Law Question

Postby 03121202698008 » Fri Dec 09, 2011 8:52 pm

As to your first hypo, no unity. As to if they are married this would depend greatly by state. In PA, O to A...non marital property. O to A and B...automatic TBE if married unless specify otherwise in the instrument. In CA, I'm pretty sure it'd be TBE as both spouses own all.

NJcollegestudent
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Re: Property Law Question

Postby NJcollegestudent » Fri Dec 09, 2011 8:54 pm

blowhard wrote:As to your first hypo, no unity. As to if they are married this would depend greatly by state. In PA, O to A...non marital property. O to A and B...automatic TBE if married unless specify otherwise in the instrument. In CA, I'm pretty sure it'd be TBE as both spouses own all.



I guess it varies widely by J. Our casebook noted many states have repealed this for abuse in that a debtor would convey their property to them and their spouse in TBYE and then be protected from seizure and liquidation.

Check your local listings i guess when you practice.

03121202698008
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Re: Property Law Question

Postby 03121202698008 » Fri Dec 09, 2011 8:55 pm

NJcollegestudent wrote:To the OP, a tenancy by the entirety is created when the original grantor re-conveys the property to the couple as such.

Unities are only for JT with right of survivorship, and in a tenancy by the entirety their comparable severing provisions are a divorce or if they sell to another.


The same unities apply to TBE with the addition of marriage.

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Re: Property Law Question

Postby 03121202698008 » Fri Dec 09, 2011 8:55 pm

NJcollegestudent wrote:
blowhard wrote:As to your first hypo, no unity. As to if they are married this would depend greatly by state. In PA, O to A...non marital property. O to A and B...automatic TBE if married unless specify otherwise in the instrument. In CA, I'm pretty sure it'd be TBE as both spouses own all.



I guess it varies widely by J. Our casebook noted many states have repealed this for abuse in that a debtor would convey their property to them and their spouse in TBYE and then be protected from seizure and liquidation.

Check your local listings i guess when you practice.


I think the TBE still gets created in most...it's just whether it protects you from single spouse debtors or not. But that's good advice for everything.

jkay
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Re: Property Law Question

Postby jkay » Fri Dec 09, 2011 9:22 pm

blowhard wrote:this would depend greatly by state.

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AreJay711
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Re: Property Law Question

Postby AreJay711 » Fri Dec 09, 2011 10:04 pm

Usually gifts or inheritances aren't even marital property though so it would depend how the conveyance happened.

mmribail
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Re: Property Law Question

Postby mmribail » Sat Dec 10, 2011 5:27 am

As to your question on the will problem it doesn't violae RAP. I am no if your professor using the this approach but it is really helpful with RAP questions. When facing a RAP question assume the worst case possible. Kill off the life in being. Which is B. Then assume that he marries someone outside of the religious preference before he died. So the gift failed. Now see if it vests. We know when B dies who C's children are so it won't violate RAP. Because the gift vested 21 years within some life in being.

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Re: Property Law Question

Postby mmribail » Sat Dec 10, 2011 5:29 am

Btw sorry for the bad spelling. I was typing this using a cell phone.

BeaverHunter
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Re: Property Law Question

Postby BeaverHunter » Sat Dec 10, 2011 10:08 am

BeachedBrit wrote:That's what I was hoping for, just got out of an exam and either missed a lot of stuff on one of the big essay issue spotters or did pretty solidly, trying to confirm which. One more question...

Ex.
Father = A
Son #1 = B
Son #2 = C
Conveyance occurs through execution of A's will aka A just died.

A to B, but if B marries someone that isn't (insert religion here), then to C's grandchildren

After conveyance to B, he marries someone that isn't (insert religion here).

1) Traditional states - Class gift at end invalid because of RAP? Causes a fee simply absolute in B?
2) "wait and see" states - Just have to wait and see if class vests/closes?

Also, would it change it anything if you made C the brother of A, rather than the brother of B?


Where is the RAP issue? B is a life in being at the time of the conveyance. If he does marry someone that isn't (insert religion here), it will be by the time he dies.

target
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Re: Property Law Question

Postby target » Sat Dec 10, 2011 11:32 am

BeaverHunter wrote:
BeachedBrit wrote:That's what I was hoping for, just got out of an exam and either missed a lot of stuff on one of the big essay issue spotters or did pretty solidly, trying to confirm which. One more question...

Ex.
Father = A
Son #1 = B
Son #2 = C
Conveyance occurs through execution of A's will aka A just died.

A to B, but if B marries someone that isn't (insert religion here), then to C's grandchildren

After conveyance to B, he marries someone that isn't (insert religion here).

1) Traditional states - Class gift at end invalid because of RAP? Causes a fee simply absolute in B?
2) "wait and see" states - Just have to wait and see if class vests/closes?

Also, would it change it anything if you made C the brother of A, rather than the brother of B?


Where is the RAP issue? B is a life in being at the time of the conveyance. If he does marry someone that isn't (insert religion here), it will be by the time he dies.


If A's still alive:
A has reversion. B has vested remainder subject to complete divestment. C's grandchildren will have shifting executory interest. I guess RAP may not apply since if B does not marry someone that isn't [religion] and C's grandchildren do not exist, then the interest reverts back to A.

If A is dead:
B has vested remainder subject to complete divestment. C's grandchildren will have shifting executory interest. RAP applies in this case since at the moment B marries someone who is not [religion], C's grandchildren, who may not exist, have interest in the land.

03121202698008
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Re: Property Law Question

Postby 03121202698008 » Sat Dec 10, 2011 11:40 am

It's worth noting that in almost all states (if not all) a restriction based on race or religion is void for public policy and struck out. Did you guys cover that?

A would then have FSA and C's grand kids have nothing.
Last edited by 03121202698008 on Sat Dec 10, 2011 11:49 am, edited 1 time in total.




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