[WSBARP] Joint Tenancy with Rights of Survivorship

[Eric Nelsen]

Washington law is thin, but I think the main case law regarding life estates sets the principle out pretty clearly, in the context of who-inherits-what. In each case, the life estate vanishes at death, and the remaindermen prevail over any claim based from the life-estate holder. See e.g. Parr v. Davison, 146 Wash. 354, 262 P. 959 (1928), See v. Hennigar, 151 Wn.App. 669, 213 P.3d 941 (Div. 3, 2009). WSBA Rea Property Deskbook Vol. 3 Ch. 1.3 (4th ed. 2009) agrees but doesn't cite authority.

See v. Hennigar says:
It is axiomatic that a person cannot convey a greater interest in real estate than she owns. Firth v. Lu, 146 Wash.2d 608, 615, 49 P.3d 117 (2002); McGill v. Shugarts, 58 Wash.2d 203, 204, 361 P.2d 645 (1961). That principle has been applied in many different real estate contexts. E.g., McDuffie v. Noonan, 176 Wash. 436, 439, 29 P.2d 684 (1934) (leasehold); Easly v. Easly, 78 Wash. 505, 139 P. 200 (1914) (partition action); McDowell v. Beckham, 72 Wash. 224, 130 P. 350 (1913) (holder of life estate could only transfer a life estate).

I think the argument goes--a life estate holder can only transfer what she owns. Her ownership terminates at death, and so any right to the property that she transfers also terminates at her death. (Even a complete sale of her life estate to another means that the transferee holds pur autre vie, during the other's, her, life). She can only encumber her own interest, so the DOT only encumbers the life estate, and so disappears at death.

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 Josh Grant
Sent: Tuesday, September 01, 2015 10:05 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> [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

NOTICES:
Confidentiality: This e-mail transmission may contain information which is protected by attorney-client, work product and/or other privileges.  If you are not the intended recipient, you are hereby notified that any disclosure, or taking of any action in reliance on the contents, is strictly prohibited.  If you have received this transmission in error, please contact us immediately and return the e-mail to us by choosing Reply (or the corresponding function on your e-mail system) and then deleting the e-mail.

________________________________
_______________________________________________
WSBARP mailing list
WSBARP at lists.wsbarppt.com<mailto:WSBARP at lists.wsbarppt.com>
http://mailman.fsr.com/mailman/listinfo/wsbarp
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mailman.fsr.com/pipermail/wsbarp/attachments/20150901/1f7a2315/attachment.html>