Property

SOUTHEAST TENNESSEE LEGAL SERVICES

 

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These matters are addressed below:

What are the differences between "and" and "or" bank accounts?

What are the differences between tenants in common and joint tenants with rights of survivorship?

What is trespassing?

Is it better to have the family automobile titled to one spouse or to both spouses?

My husband died a few months ago, and his name is still on the deed to our home. Do I have to change the deed?

Can I force a neighbor to cut down the branches of a tree hanging over my property?

Can I force a neighbor to pay for cleaning out my gutters clogged with leaves from his or her tree?

Can I go onto my neighbor’s property to perform needed repairs to my own property, even without his or her consent?

My neighbor has put up a fence that goes over my property. What can I do?

Noisy Neighbors

What are the differences between "and" and "or" bank accounts?

The contract of deposit between the financial institution and the depositors provides for the rights of parties to the various forms of bank accounts individuals commonly set up jointly with others.

Generally, the terms "and" and "or" on a joint account refer to the rights of access to the funds on deposit rather than to ownership or survivorship rights. A bank account that is set up as Mary Smith OR Jane Jones gives each party named unrestricted access to the funds, regardless of amounts contributed by them. In other words, if either Mary Smith or Jane Jones chose to make withdrawals from the account, either could do so on her own authority. The same is true for accounts set up as Mary Smith AND/OR Jane Jones. However, this is not true for accounts set up as Mary Smith AND Jane Jones. In the "and" account, both Mary Smith and Jane Jones must consent in writing, by completing written withdrawal slips or by co-signing a check, before funds can be withdrawn.

Individuals should take care at the time they are setting up accounts to be certain that the accounts will serve their particular purposes. They should be aware that the type of account they create can affect not only withdrawal rights, but also estate distribution. Some factors to be considered are:

FOR CONVENIENCE ONLY – If an individual wishes to add the name of another person who will be able to transact banking business on his or her behalf, but who will neither have an ownership interest in the funds on deposit during the individual’s lifetime nor upon his or her death, the individual should clearly indicate his or her intentions in writing at the time the account is set up.

RESTRICTED ACCESS – If an individual wishes to allow another person access to funds on deposit only with his or her consent to be evidenced in writing at the time of withdrawal, the account should be set up to require two signatures for withdrawals. This means setting up the account in the individual’s name "AND" the name of the other party.

UNRESTRICTED ACCESS – If an individual wishes to allow another person complete access to the funds on deposit without the requirement that his or her written consent be given, the account should be set up to authorize withdrawals on one signature only. This means setting up the account in the individual’s name "OR" the name of the other party.

SURVIVORSHIP RIGHTS – If an individual does not want the funds on deposit at his or her death to pass, outside of his or her estate, to the other party named on his or her account, he or she should make this intention clear at the time he or she sets up the account. Failure to do so could result in automatic survivorship rights for the other person named on the account.

ESTATE TAX – Federal and Tennessee law require an estate to pay estate tax on a joint owner’s funds if another party named on their account predeceases the individual unless the estate can prove the surviving joint owner’s share of contributions. Otherwise, the entire account is considered part of the deceased’s gross estate, subjecting the account to both federal and Tennessee estate tax. If this is an important consideration, the individual may wish to set up an individual account in his or her name only, payable on death to another party. Or, if the individual still wishes to give access to another person in case of his or her inability to transact business, he or she may add the name of someone for convenience only, making sure this is clearly spelled out at the outset.

Federal Government bonds can only be registered in the OR form. This eliminates the bond from being subject to probate since the asset will pass automatically to the other named party.

If an individual has already established a joint account, and he or she has questions about it, he or she should contact a bank officer.

What are the differences between tenants in common and joint tenants with rights of survivorship?

Joint tenants with rights of survivorship each own the whole, subject to the equal rights of the other. On the death of one joint tenant, the surviving joint tenant(s) automatically get the interest of the deceased joint tenant. This is the feature that appeals to many clients who want to avoid probate.

However, although title passes by operation of law and probate is avoided, estate tax may still be due and the amount of the tax depends on who the joint tenants were and how they obtained the property. If the deceased joint tenant and his or her spouse were the only joint tenants (as joint tenants or tenants by the entirety), then one-half of the value of the property is included in the gross estate, which is subject to federal and Tennessee estate tax. If the property was acquired by the joint tenants by gift or inheritance, then each is regarded as owning a proportionate share. On one joint tenant's death, the estate subject to tax includes his or her proportionate share. If the property originally belonged to the deceased but was held in joint tenancy with others, then the estate includes all of the property value unless the estate can prove the other joint tenants' contributions to the property. The value of the contributed property is then excluded from the decedent's estate.

Tenants in common are owners of an undivided interest in property, but there is no survivorship right between them. Accordingly, this type of property ownership would result in the property interest being subject to probate. The law presumes the creation of a tenancy in common absent a clear intent to create survivorship rights.

What is trespassing?

"Trespassing" is a legal term that can refer to a wide variety of offenses against a person or against property. In this situation, we are going to talk only about "trespassing" as it relates to going onto someone's land without consent.

Technically, a person violates the law against trespassing by knowingly going onto someone else's land without consent. "Knowledge" may be inferred when the owner (or the owner's representative) tells the trespasser not to go on the land or when the land is fenced in a manner that suggests that intruders should stay out or there is a "no trespassing" sign in an obvious place.

A trespasser will probably not be prosecuted if the land was open to the public when the trespasser originally entered the land and the trespasser's conduct did not substantially interfere with the owner's use of the property and the trespasser left on request.

Violating this law is a Class C misdemeanor.

The more serious crime of "aggravated criminal trespass" combines trespassing with conduct that would cause fear for someone's safety. This is a Class B misdemeanor. If the "aggravated criminal trespass" is committed in a house or a hospital or a school, it is a Class A misdemeanor.

If a trespasser drives or parks a motor vehicle (including a motorcycle or ATV) on private property reserved for customers or employees of a business and refuses to leave when asked, the trespasser has committed a Class C misdemeanor. This rule applies regardless of whether the business posted a sign warning against trespassing.

Regardless of whether a crime has been committed, a property owner can resort to the law to prevent trespassing. If someone makes a habit of trespassing, the property owner may ask the court to order the trespasser to get off the property and to stay off. If the trespasser causes damage to the owner's property, the owner may also sue for damages.

Sometimes a trespasser continues trespassing for such a long time, the law permits the trespasser to have the right to stay on the land. This right ranges from the right to live on the land to the right to pass across it to get somewhere else.

There are a number of complex rules governing the acquisition of these rights, which are often lumped under the broad title of "adverse possession"; and if you are concerned about acquiring these rights or preventing someone from acquiring rights in your land, you should contact a lawyer.

One common form of trespassing is when a neighbor's driveway or fence encroaches onto someone else's land. Sometimes the owner will not want to make an issue of the encroachment--either because it seems to be a minor problem or because the neighbor is a friend. To avoid problems later, however, the owner should give the "trespasser" written permission to keep the encroachment for as long as the owner continues to authorize it. If properly handled, this document will prevent the trespasser from acquiring a right to continue the encroachment and from passing along this right to future owners of the trespasser's land.

One word of caution: sometimes posting a "no trespassing" sign can backfire. Because the "adverse possession" rules are so complicated, posting a "no trespassing" sign can actually help a trespasser support a claim to the owner's property.

Is it better to have the family automobile titled to one spouse or to both spouses?

Traditionally, automobiles were titled in the name of the husband alone in order to avoid the possibility of a judgment for tort liability, arising out of the operation of the auto, from being executed against jointly-owned marital assets. This was at a time when the male spouse generally did all of the driving, and liability insurance was not mandatory. Current case law in Tennessee renders the matter of individual or joint ownership more or less irrelevant as to the issue of tort liability.

A co-owner of an automobile does not incur liability merely as a result of co-ownership. Nor does a spouse incur liability merely as a result of marriage. For any non-driver to be held liable for damages, direct negligence has to be shown, or an agency relationship or joint venture. This, plus the fact that women drive as much as, sometimes more than, their husbands, renders the issue moot, at least as to tort liability. Only the driver of the automobile will have liability for negligence. In any event, the best protection is the maximum amount of insurance reasonably affordable.

It is also to be noted that if the auto is in the name of the spouse who dies first, estate tax may be due. This is only if the estate is large enough to be subject to estate taxes ($1,000,000 in 2002). In the final analysis, there is little difference in having a car titled in the name of one spouse or in the names of both.

My husband died a few months ago, and his name is still on the deed to our home. Do I have to change the deed?

No. When a husband and wife a home jointly, they usually own it as tenants by the entireties (the deed should state this). This means that when one spouse dies, the surviving spouse becomes the sole owner. This is an automatic process and does not require any action by the surviving spouse. If the surviving spouse should decide to sell the property, or to give it as a gift, he or she needs to present a certified copy of the death certificate for recording at that time.

Can I force a neighbor to cut down the branches of a tree hanging over my property?

Yes. Neighbors have a duty not to trespass on adjoining property, and this could include tree branches. Strictly speaking, a trespass here should not require a showing of nuisance or inconvenience. However, it may be a bit sticky to actually bring into court without some showing by the plaintiff of a good reason.

These types of cases can be expensive to pursue in proportion to the harm done. The client should evaluate the expense weighed against the benefit.

Can I force a neighbor to pay for cleaning out my gutters clogged with leaves from his or her tree?

A client certainly has a right to damages if he or she has to pay for cleaning. Clearly, the neighbor who owns a tree has the responsibility. Injunctive relief may be a problem. The client would presumably have to show that damages would not be an adequate remedy.

Can I go onto my neighbor’s property to perform needed repairs to my own property, even without his or her consent?

Yes. Although this should not be advised if the possibility of violence is present to any degree. The law does provide, as an equitable remedy, that if an adjoining owner must trespass to effect necessary repairs on his or her own premises, he or she may have reasonable access. If access means damaging the neighbor’s property, this could be sticky, and if court action is required, the client could be forced to post a security bond. If self-help is used and damage is caused, the client would be liable for those damages.

My neighbor has put up a fence that goes over my property. What can I do?

In this situation, it is essential that the client be absolutely positive about the property line. This can require a survey, which could be expensive. Self-help can be, and often is used in these situations, and is permissible, as long as the user is correct about the boundary. If a mistake is made, there is full liability for damages. If self-help is not at issue, the remedy is an action in ejectment.  Ejectment actions require an attorney to file an appropriate complaint. Cost is a factor.

Also, if the cost for removing the fence is great and the adjoining property owner’s benefit from the removal is small, the court will probably not require the neighbor to remove the fence. The client needs to be aware of the law regarding adverse possession if he or she decides not to file a suit.

Noisy Neighbors

Many complaints about "noisy neighbors" arise simply because we live in conditions that can be extremely annoying; and the law might not be able to solve the problem. For example, when your neighbor is the airport, your only recourse might be earplugs.

If you suffer from the more common problem of living in an apartment where the walls are too thin, your neighbor's stereo might sound like a 747 landing--especially at 3 a.m. In that case, unless you can talk your landlord into making costly adjustments to the building, you will probably have to tolerate some of the noise. Diplomacy might also help prod your neighbors into more considerate behavior.

When diplomacy and compromise fail, however, the law might step in.

Noisy neighbors fall into two categories: inconsiderate individuals and institutions.

In general, institutions have a little more leeway than individuals. For example, if you live near a construction site, the law will tolerate a certain amount of disturbance to your peace and quiet; but it cannot be excessive. Even intrusions caused by the government (such as a municipal airport) are subject to limits. It is difficult to challenge institutions, however; and the advice of a lawyer is essential if you are to confront an institutional neighbor successfully.

Individual rackets, however, may be addressed more easily. Whether your problem is a barking dog or the saloon down the street, most cities have ordinances that define acceptable noise levels.

If you believe that your noisy neighbor has exceeded these limits, perhaps the most obvious solution is to request that the police intervene. Of course, when officers are investigating mayhem, your neighbor's barking dog might not be given high priority.

If the police are unable to resolve the problem, your next step may be to request assistance from the district attorney, who can act to enforce violations of specific nuisance ordinances. Even if this strategy fails, the law may still provide help.

If the noise level creates a nuisance, you may bring suit as a private citizen. However, the courts are not eager to intervene in minor disputes between neighbors. To obtain relief in court, you must show that the noise seriously impairs your enjoyment of life or property; it must be more than merely annoying. Legal standards such as "reasonableness" come into play, and the offending party can raise a variety of defenses to your suit.

While you may always request assistance from the courts without hiring a lawyer, this type of lawsuit can become complicated; and expert legal advice will probably prove invaluable.

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