Good Essay Example 2 (February 2020 Real Property)
This lesson presents another real, good response to the February 2020 MEE Real Property question. First, read the essay, then listen to the analysis below.
Good Essay 2
1. Severance of the joint tenancy by the husband's execution of the mortgage
The husband's execution of the mortgage terminated the joint tenancy. The issue is whether the execution of a mortgage in a state that follows the title theory of mortgages severs a joint tenancy.
A joint tenancy with rights of survivorship is a special type of co-tenancy, where one co-tenant acquires the other's interest on their death. It is created under common law when the four unities are present, time, title, interest and possession. This requires the same interest to be created by the same instrument at the same time with an interest to possess the whole. It requires special words specifically referring to the right of survivorship to be created and a general transfer to two people will instead be treated as a tenancy in common. A tenancy by the entirety is another special type of co-tenancy that exists between husband and wife when they hold property together and that cannot be mortgaged or transferred without the consent of both parties.
State A does not recognize tenancy by the entirety and so it does not need to be considered here. The husband and woman expressly purchased as joint tenant with rights of survivorship and therefore a joint tenancy rather than a mere tenancy in common was created.
A joint tenancy with rights of survivorship can be terminated by an inter vivos transfer by one party. In a state that follows the title theory of mortgages, the granting of a mortgage terminates a joint tenancy and creates a tenancy in common. The right of survivorship is terminated. In a lien theory state, the grant of mortgage will not sever the joint tenancy and a severance will only occur on enforcement.
As State A applies the title theory of mortgages, the husband's execution of the mortgage severed the joint tenancy.
2. (a) Severance of the joint tenancy by the husband's execution of the lease
Assuming that the execution of the mortgage did not sever the joint tenancy, the entry into the lease also would not have. The issue is whether entry into a lease by one party to a joint tenancy with payments "solely" to that party severs a joint tenancy.
Generally entry into a lease is not considered to be a transfer of an interest such that it causes a severance of a joint tenancy. The impact is similar to the effects of the grant of a mortgage in a lien theory jurisdiction. However, the lease can only attach to the interest that the granting joint tenant has and therefore it is subject to be terminated by the operation of the right of survivorship on the joint tenant's death.
Here, the husband entered a lease without the woman's knowledge or consent and provided that all rights to payment were solely to him. Despite this breaching the rights of the woman as joint tenant as noted below, it would not have caused severance of the joint tenancy. However, the tenant was subject to have his rights terminated by operation of the right of survivorship as noted below.
(b) Tenant's rights in the building
Assuming that the lease severed the joint tenancy, the tenant had a lease of the one half interest owned by the husband's estate on his death. The issue is what interest a tenant has when he has a lease from a tenant in common on that person's death.
On the death of a tenant in common, his interest will pass through his will or by intestacy, rather than through operation of the right of survivorship. The heirs will take subject to any interests created in the property.
Here, the husband had granted a lease prior to his death. Assuming that this severed the joint tenancy, the husband held his one half interest as a tenant in common. On his death, this would pass to his estate through his will or through intestacy and his heirs would take subject to the tenant's interest in the premises. Those heirs would be his landlord.
Therefore, the tenant would retain his tenancy in the premises.
3. (a) Woman's entitlement to half of the rental income payable to her husband under the lease
Assuming that neither the mortgage nor the lease severed the joint tenancy, the woman is entitled to half of the rental income payable to the husband under the lease.
Joint tenants have an equal interest to possess the whole. While this does not require one joint tenant to pay the other rent while the other is not using their interest in the absence of ouster, it does require that they account for rents received from third parties.
As joint tenants have equal interest and there were two joint tenants, each had an undivided one half interest in the property. Here, the woman was not using the commercial building as she worked overseas. This did not result from the man's ouster as it was part of her job and therefore he would not be required to pay rent for use of the land. However, he was required to apportion rent received from the tenant and provide the woman half of that interest during their lives.
(b) Woman's and tenant's rights in the building on the husband's death
Assuming the neither the mortgage nor the lease severed the joint tenancy, the woman acquired title to the entire premises on the husband's death through the right of survivorship and the tenant lost his interest in the land. The issues are the rights of a tenant of a joint tenant to which the other joint tenant has no knowledge.
Where one joint tenant enters a lease that the other is not aware of, this does not sever the joint tenancy. However, the lease is only of the joint tenant's one half interest and is subject to the right of survivorship. This means that on the landlord joint tenant's death, the other joint tenant takes the interest in the whole of the land free of the lease and the tenant no longer has any interest.
Here, the wife only learnt of the lease after her husband's death. Assuming that neither the mortgage nor the lease severed the joint tenancy, the woman had acquired the entire fee simple interest in the premises at that point through the right of survivorship. Thus, the tenant's interest had been terminated.
Analysis of the Sample Essay
Transcript
Let's have a look at the second representative good answer here. And just like with the first one, I have one overall note about starting with a conclusion. The bolded headers here obviously aren't that; they look like placeholders, maybe, for the test taker to keep track of things. And again, that's perfectly fine.
In fact, it can be really useful on a long multi-part essay like this one. What's interesting is that this test taker does provide a conclusion after that, in the first sentence of each prompt's written answer. So on the first prompt, for example, it says, "The husband's execution of the mortgage terminated the joint tenancy," and you'll see something similar for the other four prompts as well.
Now, there's not a "because" in any of them, which is too bad, but I do like that we're starting with a conclusion, a C for our CRAC. Interestingly, the test taker then states the issue. And again, you can see this on every prompt. After that first conclusion sentence, there's another one starting with "The issue is," or "The issues are," so this test taker seems to be following the CIRAC method, the conclusion, issue, rule, analysis, conclusion.
And that's not bad by any means, but it's longer and more awkward than our CRAC approach. So, by way of illustration, just check out the first paragraph of the answer to the first prompt. It says, "The husband's execution of the mortgage terminated the joint tenancy. The issue is whether the execution of a mortgage in a state that follows the title theory of mortgages severs a joint tenancy."
That's a C followed by an I, but it would work even better as a single sentence joined with a "because" in the middle. "The husband's execution of the mortgage terminated the joint tenancy because the state follows the title theory of mortgages." That is shorter, it's more to the point, and it actually connects the conclusion to a reason, not just to an issue. Now, that said, these are really, really strong answers all throughout.
Prompt 1 maybe even goes a little overboard in terms of detail and explanation. Those two paragraphs there explaining joint tenancy and tenancy by the entirety are totally correct, but they're also really unnecessary. The test taker could have just jumped from the first paragraph all the way down to the one saying, "A joint tenancy with rights of survivorship can be terminated by," et cetera, et cetera. Probably gotten the same amount of points.
Great work here on prompt 2(a). Remember that the bar examiners said explicitly it'd be okay to go in either direction here, so it also would have been fine to conclude that the lease did sever the joint tenancy. That is the common law rule after all, and most states still follow it.
In fact, this test taker probably shouldn't have said, "Generally, entry into a lease is not considered to be a transfer of an interest such that it causes the severance of a joint tenancy," since, in fact, the majority rule is that it does cause a severance of a joint tenancy. But still, great points here.
Prompt 2(b) is basically picture perfect. We've got a nice rule statement, an application paragraph starting with "Here," conclusion starting with "Therefore," just a fantastic job on this one.
Prompt 3(a) is great as well. The test taker here spends a while discussing how neither joint tenant has ousted the other, and I don't see how that's relevant here, since the question is about the rental income payable to the husband under the lease, not any income payable because of ouster. But the analysis is clear, correct, so no big objections here.
And then, finally, prompt 3(b) has a really strong explanation of the right of survivorship. That's really hard to improve on this one, frankly, great work. And that's it for a very long and involved essay. Five prompts is an awful lot to cover, but as we saw here, they all basically kept circling back to the same issues of joint tenancy.
And as it turns out, the bar examiners' grading guidance gives them all pretty much equal weight. One was worth 15% and the other worth 25%, but the other worth 20%. Since we stayed focused and broke things down, we managed to map out five really high-scoring mini essays, which is exactly our goal on prompts like these.
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