Citation. 220 Neb. 598,371 N.W.2d 280, 1985 Neb.
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A married couple was a tenant in common of a piece of land. Without the knowledge and consent of one party, the other party leased land to a third party.
Synopsis of Rule of Law.
One of several tenants in common can lease his interest to a third party, and if the ownership of the land is conveyed to one tenant, that tenant takes the land subject to the third party’s interest.
Facts.
Adolph Kresha and Rose Kresha (Plaintiff) owned land as tenants in common. Joseph Kresha (Defendant) is their son. The father, without the consent, knowledge or authority of the mother, leased a part of the land to Defendant. The parents were divorced, and the land was awarded to Plaintiff. Plaintiff attempted to terminate Defendant’s lease and brought a forcible entry and detainer action to obtain possession of the land.
Issue.
When spouses own property as tenants in common, but the marriage dissolves and one party gets ownership of the land, does the owner take the land subject to the encumbrances placed on it by the former spouse?
Held.
Yes.
One of several tenants in common can lease his own interest to a third party. Thus, the father could encumber his own interest in the land by a lease without encumbering the mother’s interest.
When the mother received ownership of the entire property pursuant to the dissolution decree, she took the land subject to the lease. At the time of the lease, the father owned a fee interest in the land. The lease he entered into will survive the divorce.
Discussion.
A lease by a spouse who is a tenant in common with his or her partner will survive when the parties divorce.
