Comments on: MBE Question of the Day #45 http://barexambrief.com/2010/02/12/mbe-question-of-the-day-45/ All things related to studying for and passing the bar exam, brought to you by the staff of MicroMash Bar Review Sun, 01 Aug 2010 09:54:39 +0000 http://wordpress.org/?v=2.9 hourly 1 By: Maryann Herman http://barexambrief.com/2010/02/12/mbe-question-of-the-day-45/comment-page-1/#comment-905 Maryann Herman Sat, 13 Feb 2010 14:28:00 +0000 http://barexambrief.com/?p=903#comment-905 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. 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.

]]> By: STL http://barexambrief.com/2010/02/12/mbe-question-of-the-day-45/comment-page-1/#comment-903 STL Sat, 13 Feb 2010 06:42:25 +0000 http://barexambrief.com/?p=903#comment-903 Quick note, he's petitioning the court for "Authority" to encumber the land. He needs Woman's ok, not the court's. Quick note, he’s petitioning the court for “Authority” to encumber the land. He needs Woman’s ok, not the court’s.

]]> By: STL http://barexambrief.com/2010/02/12/mbe-question-of-the-day-45/comment-page-1/#comment-902 STL Sat, 13 Feb 2010 06:38:10 +0000 http://barexambrief.com/?p=903#comment-902 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. 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.

]]> By: Amit Uttam http://barexambrief.com/2010/02/12/mbe-question-of-the-day-45/comment-page-1/#comment-901 Amit Uttam Sat, 13 Feb 2010 02:05:49 +0000 http://barexambrief.com/?p=903#comment-901 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. 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.

]]> By: Ken http://barexambrief.com/2010/02/12/mbe-question-of-the-day-45/comment-page-1/#comment-900 Ken Sat, 13 Feb 2010 00:09:55 +0000 http://barexambrief.com/?p=903#comment-900 B, Land is primarily alieanable -- the rights in land must be devisable. B,

Land is primarily alieanable — the rights in land must be devisable.

]]> By: RK http://barexambrief.com/2010/02/12/mbe-question-of-the-day-45/comment-page-1/#comment-897 RK Fri, 12 Feb 2010 20:14:44 +0000 http://barexambrief.com/?p=903#comment-897 the best answer is A the best answer is A

]]> By: Cheese http://barexambrief.com/2010/02/12/mbe-question-of-the-day-45/comment-page-1/#comment-896 Cheese Fri, 12 Feb 2010 17:51:29 +0000 http://barexambrief.com/?p=903#comment-896 He will be able to mortgage his interest or the woman will agree. I agree with D, its B. He will be able to mortgage his interest or the woman will agree. I agree with D, its B.

]]> By: D http://barexambrief.com/2010/02/12/mbe-question-of-the-day-45/comment-page-1/#comment-895 D Fri, 12 Feb 2010 17:23:53 +0000 http://barexambrief.com/?p=903#comment-895 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. 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.

]]> By: BV http://barexambrief.com/2010/02/12/mbe-question-of-the-day-45/comment-page-1/#comment-893 BV Fri, 12 Feb 2010 17:12:15 +0000 http://barexambrief.com/?p=903#comment-893 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. 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.

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