Substrate Record: qid 1300

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qid 1300 · law

Question: Assume this question takes place in a "lien theory" state. A woman and her co-habiting partner share a property as joint tenants with the right of survivorship. He has run up debts that he did not tell her about, and so he uses his interest in the property to secretly get a mortgage from the bank. When he dies, the bank attempts to execute on the mortgage. Can it do so? Apply the majority view on this issue.

1. No, although the mortgage destroyed the joint tenancy, the bank has to get a deed of trust in order to execute on jointly owned property.
2. No, the bank cannot execute on the mortgage because the property was jointly owned and one partner cannot unilaterally mortgage the property without the other's consent.
3. No, the bank cannot execute on the mortgage because the woman has the right of survivorship, which overrides the partner's debts.
4. Yes, the bank can execute on the mortgage because the partner's debt is considered a lien on the property, which overrides the joint tenancy.
5. Yes, the bank can execute on the mortgage because the partner used his interest in the property as collateral for the loan.
6. Yes, the bank can execute on the mortgage because the joint tenancy is considered severed when one partner incurs a debt without the knowledge of the other.
7. Yes, the bank got title to the property by virtue of the mortgage, which destroyed the joint tenancy, and it can execute on its lien.
8. Yes, the mortgage was the equivalent of a deed of trust and the joint tenancy was severed by the mortgage lien, giving the bank unfettered legal authority to execute on its mortgage.
9. No, the mortgage lien could not destroy the joint tenancy, and when the partner dies, the property passes by operation of law to the surviving joint tenant.
10. No, the bank cannot execute on the mortgage because the majority view in a "lien theory" state is that a mortgage does not sever a joint tenancy.

Our answer: I. No, the mortgage lien could not destroy the joint tenancy, and when the partner dies, the property passes by operation of law to the surviving joint tenant. Source quote machine-checked (exact quote)

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