The Concept of Joint Tenancy and Tenants in Common
What can be done about the incorrect boundary?
In the case of Bob, there is an aspect of both joint tenancy and tenants in common. Initially, the property was owned by Bob and his wife as joint tenancy. However, the involvement of Annie in the property leads to a sense of tenants in common where Bob and Annie share some interests in the property. Under the joint tenancy, there is a right of survivorship where the property passes to the beneficiaries according to the Will following the verdict made in the case of Wright V Gibbons. However, such a right does not exist in tenants in common though the Will determines the inheritance of the property of the diseased.
Since the transfer of property to Colin and Leanne had no issues as it was in accordance with Bob’s Will, the problem is on the aspect of tenants in common. In this case, Bob shared some interests with Annie about the property. Where a property is owned as tenants in common, each owner has their distinct shares on the property. This implies that one tenant cannot claim the ownership of shares of the deceased tenant not unless stipulated under the Will. In the absence of a document listing which owner owns shares, it is assumed that each owner owns an equal share. In the case of Bob, a Will was enacted stipulating the claims to each party. The property was passed to Colin and Leanne according to the Will. On the same note, Annie had some shares since she owned the property with Bob as tenants in common. However, there were some listings of the properties owned by Annie under the Will.
In determining the issue of the fence, the shares of Annie to the property will be determinant. According to the case facts, Annie has interests in the Alpaca, Kiln, and the pottery studio. In this case, Annie has no right to claim any other possession over the property. Since Annie reinstated the fence, making it wrong and letting the studio cross the boundary, the fence has to be reinstated back to its correct possession. In this case, Annie has shared on the studio but making an incorrect fence contravenes the Will. As the rules guide the tenants in common, each party has shared the property, and the interest passes according to the shares of the owned property. The act that Bob left his possessions to Annie does not override the Will.
The reinstatement of the fence by Annie contravenes the terms of the Will. Therefore the only available solution to this situation is to reinstate the fence again to leave Annie’s property. Since the Will clearly states the shares, Annie cannot claim to possess everything on the property, and the fence should not cross the shares owned by Bob and Collin. For this case, the rules about the shares under the tenants in common will prevail, and therefore, by following the Will, the fence has to be reinstated back to make the proper distinction of claims over the property.
The Right of Survivorship and Shares Ownership
What can be done about the studio encroaching boundaries?
Concerning property ownership, encroachment is a situation where a property owner violates the neighbor’s property rights by either building or extending a structure to the other person’s land or property, either intentionally or otherwise. In the case scenario, the encroachment of the boundary by the studio can be termed trespassing. Initially, Annie and Bob shared the studio, which could not lead to any issues since the two tenants had common interests in the property.
The transfer of the property to Colin and Leanne changed the interests shared by Bob and Annie. Colin and Leanne have interests in the possessions stipulated under the Will, and Annie has interests in the studio. In this case, the encroachment of the boundary by the studio is trespassing. It interferes with Colin’s and Leanne’s property and their enjoyment of the property. Even though Annie has interests in the studio, this does not guarantee her rights to usage or possession of any other part of the property. In this case, the encroaching boundary makes the studio be wrongly placed since it extends to other people’s land, interfering with their property rights and usage.
Generally, according to the survey rules and regulations, an existing boundary wall built on the land of both properties can be taken down and rebuilt as a new party wall. In this case, the studio will remain intact. With the court’s help and by following the Will, the boundary will be taken down and rebuilt. Interfering with the studio will damage one’s property, which will not be considered a remedy. The parties will engage in a new agreement in reestablishing the boundary so that the studio does not extend to Colin’s and Leanne’s property.
Since a property survey outlines the physical layouts of property, including measurements of metes and bounds, wrong information contained in the study may lead to intrusion of the property into the neighbor’s land. This may not be intentional, but the fact remains that the intrusion of the property interferes with the neighbor’s property. In this case, a property owned by tenants in a joint and inherited by one tenant, the property cannot be damaged. However, the parties agree to reestablish the boundary and not interfere with the property.
The encroachment occurred with the knowledge of Annie. In this case, Annie could have carried out due diligence before erecting the fence that made the studio fall close to the boundary that separates their property with Colin and Leanne. A land survey will help reestablish the wall to ensure that the studio does not fall within Colin’s and Leanne’s property boundaries. Failure to reestablish the fence, Annie will be forced to interfere with the studio part that protrudes to Colin’s and Leanne’s land. Each party must be accessible and enjoying the property, and therefore the tenure system does not allow interference with one’s property.
Is a claim for adverse possession possible?
In the recent case of Hacienda Ranch Homes Inc. V. Superior court of San of Joaquin court, the court of appeal restated the adverse possession. This case shows the failure or success of adverse possession where a co-owned property. Generally, when a property is owned by two tenants, either through joint tenancy or tenants in common, the adverse possession depends on various factors. It is difficult for the adverse possession to prevail in a property already registered in the name of a living tenant, and the tenant exercises his rights over the property.
- A person seeking to establish adverse possession must show the following:
- The possession must be by actual occupation
- The residence must be hostile to the owner’s title
- The holder must claim the property as his own
- The control must be continuous and uninterrupted for five years
- The holder must pay all the taxes upon the property.
Encroachment and Trespassing: Understanding the Boundaries
However, with the satisfaction of the above requirements, the rules on tenants in common and joint tenancy override the adverse possession. The right of survivorship and the Will are the main factors that establish the property owner, a property owned by joint tenants or tenants in common. In this case, it becomes challenging to change the Will to suit a party for adverse possession. A Will stipulates who to own the property after the death of the property, and this marks the final consideration in dealing with property conflicts upon the death of a tenant.
In the case above, Bob left a Will stating who owned which property on the land. Although there is an aspect of tenancy in common that existed between Bob and Annie, there is no guarantee for adverse possession to either party. Annie had some interest in some controls but not the whole property. Colin and Leanne had interests as stipulated under the Will. In this case, the Will is considered the final document to establish who owns which property, and therefore the issue of adverse possession will not be possible in this case.
It is a common assumption that the operations of Torrens title and the concept of indefeasibility in Australian law hinder the operations of adverse possession. While it is true that adverse possession fundamentally undermines the functions of the title system by registration, every Australian recognizes the conditions in which an adverse possession may still acquire either an enforceable interest or title to land over a registered owner with the indefeasible title. Since the issue of indefeasibility is not applicable in this case, the fact remains that the only consideration is the Will that Bob left.
Bob left all his possessions to Annie, and it is not a guarantee that Annie should claim adverse possession using such documents. There is no tax that Annie paid to the property and, therefore, no grounds that Annie can demand adverse possession. Since the case incorporates co-ownership of the property, neither party can succeed in an adverse possession claim. According to the Will, the property is inherited by Colin and Leanne. However, the right to enjoy the property excludes Colin and Leanne from exercising their rights over Annie’s possessions. In a tenancy in common, a diseased tenant determines who to own the property through a Will. Neither Colin, Leanne, nor Annie can establish an adverse possession claim according to the Will. Each party has its property on which to base its interests and, therefore, there is no possibility for adverse possession.
Do they have the best claim to necklace?
The diseased establish who to own property through the Will in property ownership. In this case, the diseased may fail to mention some properties. Such properties raise conflicts as to who owns which property. In this case, since the necklace is not part of the possessions, probate will determine who owns the necklace. In this case, the chain is a neutral property and distinct property from the properties listed in the Will. Therefore, the parties do not have the best claim to the necklace, and none of them can claim to own the necklace.
Probate is the legal process of transferring ownership of assets from a deceased individual to the beneficiaries. During this process, A Will written by the diseased is used in transferring the property. In the case of a Will, the court helps the beneficiaries share the property. However, for the properties not specified under the Will, no party can raise a claim to possess such properties. In the case of Bob, the necklace is not the property of either Colin, Leanne, or Anne. Therefore, the three parties have o best claim for the necklace since it is not the property of any party.
However, real property cannot be separated from the land. In this case, everything on the ground remains the property of the beneficiary listed in the decedent’s last Will. Since the Will is valid and the necklace is on Colin’s and Leanne’s land, both Colin and Leanne can establish the best claim to possess the necklace. If the deceased owner does not leave a Will, the property of the land passes to the decedent’s heirs at law. In this case, Colin and Leanne can have the best claim over the necklace. Spouses and children are the first to be considered in inheriting the real property if the Will does not specify who to own which property. In the case of Bob, the necklace is owned by no party, but Colin and Leanne can establish the best claim to possess the necklace.
Babie, Paul T., and John V. Orth. “The Troubled Borderlands of Torrens Indefeasibility: Lessons from Australia and the United States.” (2020).
Hacienda Ranch Homes, Inc. v. Superior Court (2011) 198 CalApp.4th 1122
Orth, John V. “Termination of tenancy in common by adverse possession: A comparative lesson from the United States.” ADELAIDE LAW REVIEW 40, no. 2 (2019): 609-614.
Orth, John V. “Termination of tenancy in common by adverse possession: A comparative lesson from the United States.” ADELAIDE LAW REVIEW 40, no. 2 (2019): 609-614.
Singer, Joseph William, Bethany R. Berger, Nestor M. Davidson, and Eduardo M. Peñalver. Property law: Rules, policies, and practices. Wolters Kluwer Law & Business, 2017.
v Carpenter, Snell. “Discuss the tenancy in common. Key features: no rights of survivorship but the ability to deal in the property, in particular the right to leave property on death. Discuss the advantages of retaining the distinction.” Unlocking lAnD lAW.
Walter, Janis, and Emma Wright. Wills, Trusts, and Estate Administration. Cengage Learning, 2021.
Wright v Gibbons – [1949] HCA 3 – 78 CLR 313
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