A man and a woman, who are not married to each other, own a parcel of land as joint tenants with rights of survivorship. The man wants to improve the land by borrowing money and giving a mortgage on the man’s and the woman’s interest in the land to secure the obligation.
If the man brings a petition in a court of competent jurisdiction for authority to encumber the land to the extent necessary to finance the improvement:
A. The petition will be denied.
B. The petition will be granted.
C. The issue cannot be resolved without a preliminary determination of whether the mortgage will unreasonably encumber the woman’s interest in the property.
D. The issue cannot be resolved without a preliminary determination of whether the land can be used economically in its present state.
{ 9 comments… read them below or add one }
Answer A is correct. A cotenant cannot convey or encumber any interest but his own. Therefore, a court will not encumber the interest of an unwilling cotenant, even if the encumbrance would benefit the property. In this situation, the man can only obtain a mortgage on his undivided half interest or partition the property so that he can mortgage his exclusive interest in half of the property. Therefore, B is incorrect.
Answer C is incorrect. There is no standard which allows a cotenant to encumber the interest of an unwilling cotenant if the encumbrance is reasonable. The prohibition is absolute. The man can only obtain a mortgage on his undivided half interest or partition the property so that he can mortgage his exclusive interest in half of the property.
Answer D is incorrect. A cotenant cannot encumber the interest of an unwilling cotenant, even if the encumbrance is necessary to the economical use of the land. The prohibition is absolute. The man can only obtain a mortgage on his undivided half interest or partition the property so that he can mortgage his exclusive interest in half of the property.
Quick note, he’s petitioning the court for “Authority” to encumber the land. He needs Woman’s ok, not the court’s.
A joint tenant or tenant in common may encumber her interest, but may not encumber the interests of other co-tenants. Here the facts state that a Man and Woman, who are not married (which would cause any mortgage to be ineffective if it were the case they were married) are joint tenants of the property. The man, thus, owns an undivided 1/2 interest.
Here the man wants to mortgage his And Woman’s property presumably without her permission. The question says the man brings an action in court for permission to encumber the land. This flies in the face of the rule.
B-D are wrong. B is wrong b/c it is directly stated against the rule. C is wrong b/c it automatically unreasonably encumbers the woman’s interest. D is wrong b/c it doesn’t even speak to the facts.
A is the correct answer as it addresses the law that is being tested here.
B. Both joint tenants have equal rights to the whole land and either one can decide to take a mortgage interest in it to improve the land.
B,
Land is primarily alieanable — the rights in land must be devisable.
the best answer is A
He will be able to mortgage his interest or the woman will agree. I agree with D, its B.
B. I think the “authority to encumber the land to the extent necessary ” would mean that the woman may give her consent, or he is free to mortgage only his own interest or the court may partion.
I like A. Man may seek to mortgage his undivided one-half interest. However, the facts state that he seeks to mortgage woman’s interest as well. His petition could potentially cause a severance (if the mortgage were later foreclosed) with both interests encumbered and at risk. Man apparently seeks to do this without woman’s approval or her opportunity to be heard. I think that’s a no-go.