There's a little puzzle question in the comments here, right at the end

Daily Development for Monday, July 15, 2002

By: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri
prandolph@cctr.umkc.edu

DEEDS; HOMESTEAD PROPERTY: Homestead property held in joint tenancy may not be alienated without the joint consent of both joint tenants.

Besnilian v. Wilkinson, 25 P.3d 187 (Nev. 2001).

In 1990 Simon Besnilian and Glenda Besnilian jointly executed a Declaration of Homestead on property that they had acquired in 1975. Unbeknownst to Glenda, Simon executed a deed of his interest in the property to Wilkinson and others prior to his death. Glenda continued to live on the property and paid all expenses related thereto. She then brought an action to quiet title to the property. The Supreme Court of Nevada concluded that the Constitution of the State of Nevada would not permit alienation of homestead property held in joint tenancy without the consent of both parties. The court overturned the decision of the District Court, which would have barred Glenda's claims based on laches, and decreed that Glenda should be allowed quiet title to the subject property.

Comment 1: The editor welcomes this result, which in his view should extend beyond situations tied into Constitutional homestead. The editor views as a pernicious anachronism the joint tenancy rule that permits one joint tenant secretly to sever the tenancy and destroy the survivorship right of the other joint tenant. The rule comes from the ancient doctrine of "four unities," which itself is frequently ignored by the courts. In modern context, it almost always operates to work an effective fraud on the other joint tenant. There is no reason why a joint tenant should not at least be required to notify the other joint tenant that severance is about to occur, so that the other tenant will be able to conduct his or her affairs taking into account the loss of the survivorship right. The editor believes that legislation would be appropriate requiring a joint tenant to give the other joint tenant advance notice of a proposed severance.

Comment 2: In many jurisdictions that do not recognize tenancies by the entireties, husbands and wives commonly use joint tenancies to acquire their homes. This is true in the editor's neighboring state of Kansas. The editor posits a guess that virtually none of the real estate brokers and title companies that recommend the use of this device as the "standard method" advise these couples that one of them could strip away the survivorship feature of the estate while the other remains blissfully unaware (or, in light of the fact that such actions often occur at times of marital strife - not so blissfully). Such important alterations of right should not occur without notice.

Comment 3: Although the concern is perhaps most acute when the rule applies to the family home, the concerns are equally real with regard to investment property. There is no benefit served by permitting one party, without prior notice or warning, to terminate an important right of the other in a shared investment.

Readers are urged to respond, comment, and argue with the daily development or the editor's comments about it.

Items in the Daily Development section generally are extracted from the Quarterly Report on Developments in Real Estate Law, published by the ABA Section on Real Property, Probate & Trust Law. Subscriptions to the Quarterly Report are available to Section members only. The cost is nominal. For the last six years, these Reports have been collated, updated, indexed and bound into an Annual Survey of Developments in Real Estate Law, volumes 1‑6, published by the ABA Press. The Annual Survey volumes are available for sale to the public. For the Report or the Survey, contact Maria Tabor at the ABA. (312) 988 5590 or mtabor@staff.abanet.org

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