Citation. 22 Ill.188 Colo. 392, 535 P.2d 213 (1975)
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Betty Mann and Aaron Mann, a married couple, owned a family residence in joint tenancy during their marriage. The couple divorced in 1971 and as part of their divorce entered into an agreement which provided that the family residence should be sold and the proceeds be equally divided between Betty and Aaron upon the occurrence of either the remarriage of Betty, when the youngest child of the couple reached twenty one, or the mutual agreement of Betty and Aaron to sell. Betty lived in the residence with the children until her death in 1972 at which time the Petitioner Aaron Mann told his children that he now owned the house by virtue of the right of survivorship in the joint tenancy with Betty.
Synopsis of Rule of Law.
An ownership as joint tenancy may be converted to one of tenancy in common by the mutual agreement or by the actions of the parties from which an intent to treat the ownership as tenants in common may be inferred.
Facts.
Betty Mann and Aaron Mann, a married couple, owned a family residence in joint tenancy during their marriage. The couple divorced in 1971 and as part of their divorce entered into an agreement which provided that the family residence should be sold and the proceeds be equally divided between Betty and Aaron upon the occurrence of either the remarriage of Betty, when the youngest child of the couple reached twenty one, or the mutual agreement of Betty and Aaron to sell. Betty lived in the residence with the children until her death in 1972 at which time the Petitioner Aaron Mann told his children that he now owned the house by virtue of the right of survivorship in the joint tenancy with Betty. The administratrix of Betty’s estate and the children (Respondents) filed an action to quiet title to the property on the theory that the property settlement in the divorce had the legal effect of converting the joint tenancy to a tenancy in common, which resulted in Betty’s interest pas
sing to the children upon her death. The lower court found in favor of the children and stated their interest to be as owners as tenants in common of an undivided one-half interest in the house. Aaron appealed to the intermediate appellate court, which affirmed the trial court. Aaron appealed from the intermediate appellate court.
Issue.
Did the property settlement agreement in the divorce action have the effect of converting the joint tenancy into a tenancy in common?
Held.
Yes. Affirmed.
The Petitioner Aaron Mann argued that the provisions of the property settlement agreement indicate the parties intent to keep the property as a joint tenancy unless one of the three listed contingencies occurred. The Petitioner argued that since none of the three listed events happened prior to Betty’s death, the house belongs to him by right of survivorship. The Court finds that the modern view is that the courts not require the act of the co-tenant to be destructive of one of the traditional four unities of time, title, possession and interest in order for the joint tenancy to terminate.
The newer view is that the joint tenancy may terminate by mutual agreement (such as this case) when the parties treated the ownership interest as a tenancy in common. The Court cited authority for the proposition that the parties’ intention to treat their ownership as tenants in common may be inferred from their actions.
Because the provisions of the property settlement agreement in the divorce provided for the sale of the property and the equal division of the proceeds therefrom, the intent of the parties to treat their ownership as a tenancy in common is manifest.
The Court found that to hold that the provisions of the property settlement agreement in the divorce left the ownership as a joint tenancy with right of survivorship is contrary to common sense. The Court cited a case which stated that, since the parties were having martial problems, it would be hard to fathom that they would have entered into an agreement by which the bulk of their estate would pass to the other upon their death.
Discussion.
The holding of this case is important not just as property law, but has far-reaching implications for practitioners of family law. The case illustrates the necessity of divorce counsel to careful examine the ownership interests of the divorcing parties to make sure that their intent is not frustrated.
