Joint Tenancies in Iowa Today

AuthorN. William Hines
PositionProfessor of Law and Dean Emeritus, The University of Iowa College of Law
Pages1233-1274
1233
Joint Tenancies in Iowa Today
N. William Hines
I. PROLOGUE: MY CLOSE PERSONAL ASSOCIATION WITH IOWA JOINT
TENANCY LAW ...................................................................................... 1235
II. INTRODUCTION .................................................................................... 1236
III. COMMON LAW ORIGINS OF JOINT TENANCY LAW ................................ 1237
A. JOINT TENANCY AND “USE ESTATES ............................................... 1237
B. CONCEPTUAL OWNERSHIP “BY THE WHOLE ................................... 1237
IV. CREATION OF JOINT TENANCIES IN IOWA REAL PROPERTY .................. 1238
A. THE “FOUR UNITIES TEST ............................................................. 1238
B. IOWAS STATUTE REVERSING THE COMMON LAW ............................. 1239
C. NO TENANCY BY THE ENTIRETY? .................................................... 1240
D. ONE HUNDRED YEARS OF “FOUR UNITIES ANALYSIS ........................ 1242
E. FORSAKING THE “FOUR UNITIES .................................................... 1242
F. RISK OF AN UNINTENDED GIFT TO ANOTHER JOINT TENANT ............ 1243
G. TRANSFER ON DEATH DEEDS AND JOINT TENANCY ........................... 1244
V. RIGHTS OF LIVING JOINT TENANTS INTER SE ....................................... 1245
A. GENERAL PRINCIPLES ..................................................................... 1245
B. SHARE SIZE .................................................................................... 1246
C. RIGHT TO POSSESSION; RENT .......................................................... 1246
D. ADVERSE POSSESSION ...................................................................... 1247
E. ACQUISITION OF A SUPERIOR TITLE EXTERNALLY ............................. 1247
F. CONTRIBUTION .............................................................................. 1248
G. IMPROVEMENTS MADE BY ONE CO-TENANT ..................................... 1248
H. EMINENT DOMAIN .......................................................................... 1249
I. WASTE ........................................................................................... 1249
J. PARTITION ..................................................................................... 1249
Most of the material in this Essay was first presented at a University of Iowa College of
Law CLE Program entitled “Iowa Real Property Law” on October 21, 2011, in Iowa City.
Joseph F. Rosenfield Professor of Law and Dean Emeritus, T he University of Iowa
College of Law.
1234 IOWA LAW REVIEW [Vol. 98:1233
VI. DEATH OF A REAL PROPERTY JOINT TENANT: OPERATION OF THE
RIGHT OF SURVIVORSHIP ..................................................................... 1250
A. DISCLAIMER OF THE JOINT-TENANCY SURVIVORSHIP RIGHT .............. 1251
VII. SEVERANCE OF REAL-PROPERTY JOINT TENANCIES .............................. 1252
A. IMPORTANCE OF THE “FOUR UNITIES ............................................. 1252
B. THE NEW IOWA “INTENT THEORY FOR SEVERANCES ....................... 1255
C. “INTENT TO SEVER MANIFESTED IN A WILL .................................... 1257
D. INTENTIONALLY CAUSING THE DEATH OF THE OTHER JOINT
TENANT ......................................................................................... 1258
E. SIMULTANEOUS DEATH................................................................... 1258
F. PARTIAL SEVERANCE ...................................................................... 1258
VIII. IOWA LAW GOVERNING JOINT TENANCIES IN TANGIBLE AND
INTANGIBLE PERSONAL PROPERTY, AND JOINT-AND-SURVIVOR
ACCOUNTS IN FINANCIAL INSTITUTIONS .............................................. 1259
A. TANGIBLE PERSONAL PROPERTY ..................................................... 1259
B. UNTITLED TANGIBLE PERSONAL PROPERTY USED ON LAND HELD IN
JOINT TENANCY .............................................................................. 1259
C. INTANGIBLE PERSONALTY—CORPORATE STOCKS AND BONDS ........... 1260
D. JOINT-AND-SURVIVOR BANK ACCOUNTS............................................ 1261
E. THE CONTRACT THEORY ................................................................ 1262
F. PROBLEMS WITH STRICT APPLICATION OF “CONTRACT PRINCIPLES . 1262
G. REFORM NEEDED ............................................................................ 1264
H. RIGHTS OF THIRD PARTIES TO FUNDS TAKEN BY SURVIVORSHIP ........ 1265
I. RIGHTS OF BANK CO-DEPOSITORS INTER SE .................................... 1267
J. EXPRESS REVOCATION OR SEVERANCE BY WILL ................................ 1269
K. POD ACCOUNTS AND TOD AUTHORIZATIONS .................................. 1270
L. “IN TRUST FOR ACCOUNTS ............................................................ 1271
IX. CONCLUSION ....................................................................................... 1272
2013] JOINT TENANCIES IN IOWA TODAY 1235
I. PROLOGUE: MY CLOSE PERSONAL ASSOCIATION WITH
IOWA JOINT TENANCY LAW
When I joined the Iowa Law faculty in 1962, one of my first assigned
courses was Land Transactions Law, and joint-tenancy law was one of the
topics I covered in that class. I found the law of co-ownerships fascinating
and resolved to learn more about it.
My growing interest in joint tenancies led to my writing a monograph
for the Iowa Agricultural Law Center (“ALC”) in 1965. The monograph was
entitled “Estate Planning Iowa Joint Tenancies.” Most likely because this
fifty-page monograph was distributed without cost to any Iowa lawyer
requesting it, we soon ran out of copies. We could not afford a second
printing at that time, so like my 1964 ALC monograph, “Iowa Farm Fence
Law,” the joint-tenancy monograph became something of a collector’s item.
Some senior Iowa lawyers may still have these monographs in their files.
My interest in joint tenancies and how they were being used in Iowa
then led me to undertake a modest empirical research project where I led a
team of student researchers in examining the land records and probate files
in five Iowa counties from widely distributed areas of the state. This research
resulted in the publication of two major law review articles; the first
describing the prevalence of joint tenancies among co-owners of Iowa land,1
and the second describing the prevalence of joint-and-survivor holdings
among co-owned personal property inventoried in Iowans’ estates.2
This research revealed that, among Iowa land titles held by co-owners,
joint tenancies were overwhelmingly predominant, and in all written forms
of personal property co-ownerships held by recently deceased Iowans, most
notably in automobiles, stocks, bonds, CDs, and bank accounts, joint-and-
survivor ownership forms were the norm. Documenting the prevalence of
the joint-and-survivor ownership form among those choosing co-ownership
for either land or personal property was certainly not a surprise to those who
practiced property law in Iowa at the time. The subsidiary findings were also
not shocking: well over ninety percent of these joint-and-survivor ownerships
were between property owners who were husbands and wives, and nearly all
the rest involved other intra-family co-ownerships. Tenancies in common
were fairly rare and were usually the result of a shared inheritance, rather
than a planned commercial transaction or planned gift.
While the fact that joint-and-survivor co-ownerships were the
predominant form of holding among concurrent owners was not a surprise,
it was something of a revelation, even to practicing Iowa lawyers, that joint
tenancy also dominated all other possible holding forms for Iowa real estate,
1. N. William Hines, Real Property Joint Tenancies: Law, Fact, and Fancy, 51 IOWA L. REV.
582 (1966).
2. N. William Hines, Personal Property Joint Tenancies: More L aw, Fact and Fancy, 54 MINN. L.
REV. 509 (1970).

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