[WSBARP] Joint Tenancy with Rights of Survivorship

Tue Sep 1 10:30:41 PDT 2015

It's just logic.  The life tenant only held a life estate and could only encumber t a life estate.  Once the life estate ended, the lender's security interest disappeared.  It sounds like the lender is trying to lean on the remainder persons to make good on the decedent's debt, but the remainder persons have no obligation to do so.  The lender's only real option is to file a claim against the decedent's estate.

Gretchen Valentine
VP and NW Regional Underwriting Counsel
Title Resources Guaranty Company
12201 SE 8th Street, Suite 200
Bellevue, WA 98004
425-896-3836 (direct)
425-451-7301 (office)
206-962-7744 (cell)
Gretchen.Valentine at TitleResources.com<mailto:Gretchen.Valentine at TitleResources.com>
________________________________
From: wsbarp-bounces at lists.wsbarppt.com [wsbarp-bounces at lists.wsbarppt.com] on behalf of Josh Grant [jgrant at accima.com]
Sent: Tuesday, September 01, 2015 10:04 AM
To: WSBA Real Property Listserv
Subject: Re: [WSBARP] Joint Tenancy with Rights of Survivorship

I have a case where a life tenant granted a DOT, and after death the bank attempts to foreclose against the remainderman (non-borrower).  Your comment about life estate, (and this is in a different context), makes me wonder if you have any authorities, briefs, etc. that stand for the proposition that once a life tenant passes on, any security given evaporates in thin air?

Joshua F. Grant, PS
Attorney at Law
P. O. Box 619
Wilbur, WA 99185
tel 509 647 5578
fax 509 647 2734

From: Eric Nelsen<mailto:Eric at sayrelawoffices.com>
Sent: Tuesday, September 01, 2015 8:34 AM
To: WSBA Real Property Listserv<mailto:wsbarp at lists.wsbarppt.com>
Subject: Re: [WSBARP] Joint Tenancy with Rights of Survivorship

For what it's worth, I think you're right, I haven't found any Washington case law that addresses the issue, and the cases make clear that Washington's JTWROS statute is peculiar and not readily comparable to any other state's JT rules.

Seems to me our cases regarding severance of the ROS all have to do with transfers or attempted/contemplated transfers of a fee interest--whether it's via a community property agreement, or a contract to sell the property. I can't think of a case in Washington where ROS is severed by a transfer of less than a fee interest, like a lease or perhaps a deed of trust. Maybe creation of a life estate would sever ROS, but I think that's a special case that does involve splitting the fee interest in some way. I wonder if one JT's attempted grant of an easement would sever.

Approached the other direction--what happens to the lease when the lessor JT dies? Since the lessor JT's fee interest "vanishes" at death, does the lease automatically terminate, analogous to a leasehold tenancy from a life-estate lessor? Or does the lease attorn to the survivor? I don't think attornment would be a fair result for the survivor, who never agreed to subject their ownership and possessory interest to a tenant. Yet, to hold that the lease survives would effectively cause the deceased's JT interest to linger after death, until the lease terminates--and that result sounds a lot like "a lease by one JT severs the ROS."

All purely speculative of course, since I don't think we have any binding guidance from the appellate courts.

Sincerely,

Eric

Eric C. Nelsen
SAYRE LAW OFFICES, PLLC
1320 University St
Seattle WA  98101-2837
phone 206-625-0092
fax 206-625-9040

From: wsbarp-bounces at lists.wsbarppt.com [mailto:wsbarp-bounces at lists.wsbarppt.com] On Behalf Of Marcus Fry
Sent: Tuesday, September 01, 2015 7:28 AM
To: 'wsbarp at lists.wsbarppt.com'
Subject: [WSBARP] Joint Tenancy with Rights of Survivorship

Does a lease by one JTWROS of the real property to a third party convert the tenancy to a tenancy in common?  I haven’t found any WA case law on this pt.  CA court decision says yes, but a Cal Law review says majority of states say the opposite.  WA appears to be silent.

Marcus J. Fry
Lyon, Weigand & Gustafson, P.S.
P.O. Box 1689
Yakima, Washington  98907
Telephone:  (509) 248-7220
Facsimile:  (509) 575-1883

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