Estates & future interests

While real property held as tenancy by the entirety cannot be conveyed absent consent of both spouses, funds held in a bank account can be withdrawn by either spouse and, upon withdrawal, cease to be entireties property

The Supreme Court of Tennessee overruled prior cases and adopted the Arkansas approach that allows spouses that own bank account as tenants by the entirety are free to withdraw funds unilaterally (without consent of their co-owner) and that moneys so withdraw become the individual property of the spouse that withdrew the funds. This contrasts with real property which neither spouse may convey without the consent of the other....

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Can an owner or inhabitant of real property give police the right to search property when a co-owner or coinhabitant objects?

The Appeals Court of Massachusetts held that the police could search a closed suitcase in a common closet of a bedroom when given permission to do so by the defendant's coinhabitant. Commonwealth v. Hernandez,93 Mass. App. Ct. 172, 2018 Mass. App. LEXIS 48 (Mass. App. Ct. 2018). This ruling was based on traditional...

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Will leaving land to surviving heirs of the decedent's child creates a life estate in the child with remainder in the heirs

The Georgia Supreme Court has interpreted a will leaving land to the "surviving heir or heirs" of the decedent's child as creating a life estate in the child with a contingent remainder in the child's heirs. Anderson v. Anderson, 791 S.E. 2d 40 (Ga. 2016) Read more about Will leaving land to surviving heirs of the decedent's child creates a life estate in the child with remainder in the heirs

Retroactive restraints on leasing in homeowners associations

The courts continue to divide over the question of whether it is fair to allow homeowners associations to impose retroactive restraints on leasing on existing owners who purchased with no notice of the restriction. While most states allow this, a few do not, and the Restatement (Third) of Property (Servitudes) §6.10(2), §6.10 cmt. g, takes the position that such major changes in property rights can only be accomplished prospectively unless there is a unanimous vote to alter those rights.

The Idaho Supreme Court recently adopted what appears to be the majority...

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Distinguishing between a right of first refusal and a restraint on alienation

The Massachusetts Land Court decided an interesting case interpreting a conveyance that reads like a right of first refusal but can be interpreted as a broader restraint on alienation giving discretion to a nonprofit entity to refuse absolutely to any transfer of the land. Gottlieb v. Girl Scouts of E. Mass., 2016 WL 3523859 (Mass. Land Ct. 2016). The conveyance stated that "...

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Fee simple absolute found despite language of "in trust" and "for the uses, purposes" of the YWCA

In a standard application of traditional estates doctrine, the Massachusetts Appeals Court has found a fee simple absolute despite language in the grant to the YWCA stating that the property was given "in trust, nevertheless, for the uses, purposes and trusts aforesaid." Young Women's Christian Ass'n, Inc. of Boston, Inc. v. Young Women's Christian Ass'n of Philadelphia, Inc., 90 Mass. App. Ct. 1119, 2016 WL 7162737 (Table) (Mass. 2016).

Traditionally any language in a conveyance of a fee...

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Mortgage of joint tenancy interest does not encumber interests of joint tenants who do not join the deal

In Bac Home Loans Servicing, L.P. v. Savankham, 2016 Mass. LCR LEXIS 86 (Mass. Land Ct. 2016), a mother gave a bank a mortgage on her joint tenancy interest in property she shared with her two children. The children did not know about or participate in the transaction. Apparently, the bank thought it was getting a mortgage on the whole property rather than just the joint tenancy interest of one joint tenant and...

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Banks that foreclose without legal authority to do so commit the tort of wrongful foreclosure

The California Supreme Court held in Yvanova v.  New Century Mortgage Corp.,, 365 P.3d 845 (Cal. 2016), that a borrower has standing to prove that a nonjudicial foreclosure was wrongful because an assignment by which the foreclosing entity purportedly took a beneficial interest was void, thereby depriving the foreclosing party of any authority to foreclose through a trustee's sale. 

In a follow up case,...

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