PropertyProf Blog

Communities, Co-Owners, and Privacy

Greetings readers of PropertyProf Blog!  I am delighted to join the crew of bloggers here and look forward to sharing thoughts with you and, more importantly, reading your views on property issues in the modern world.

This week I have been neck deep putting the finishing touches on an article, Privacy and Community Property.  (Which I will be presenting this year at ALPS, so come join us in Belfast in May!)  Not to bore folks with details, but basically the article explores intra-spousal privacy rights in community property regimes with regards to community property.  For example, A and B marry.  A buys a diary.  Barring some exception, under community property law, the diary is classified as community property, meaning it is jointly owned by the spouses from the moment it is acquired.  Being classified as community property also means that the diary has to fall under some managerial scheme.  The default managerial scheme which the diary likely falls under is equal management, which means either spouse can manage (ex: sell, encumber, lease, etc.) the diary.     A writes in the diary.   A tucks the diary deep in a drawer and puts a lock on it like a second grader would.  

Query:  can B read the diary?

The diary example is perhaps a silly example you would expect to find being argued about on the playground of an elementary school, but the question comes up regularly in divorce cases.  Can A read B's emails without B's consent?  Answer:  Sometimes yes, sometimes no, all turning on reasonable expectations of privacy and whether B's "intrusion" into A's seclusion was highly offensive.  (See White v. White, 781 A.2d 85 (N.J. 2001); State v. Walker, 491 Mich. 931 (2012).)  Is it an unreasonable intrusion upon the seclusion of A for B to videotape A unknowingly in the bedroom A and B share?  Answer:  Yes.  It is always a highly offensive intrusion.  (See Miller v. Brooks, 472 S.E.2d 350, 355 (N.C. App. 1996); Clayton v. Richards, 47 S.W. 3d 149, 153 (Tex. Court of Appeal Texarkana 2001); Marriage of Tigges, 758 N.W.2d 824, 825 (Iowa 2008).)

These issues are fascinating to me, particularly in the community property setting.   Community property is everywhere:   your house, your car, your email, this blog (see section 5.2 of Typepad's Privacy statement establishing my ownership over this particular post!).  If you live in one of the nine community property jurisdictions, as I happen to, do you have any right of privacy with regards to that community property? 

I won't bore you here with the long details of my argument, but, in brief, the answer to me must be yes, but community property law muddies the privacy waters.  Thus, I assert there needs to be clarification in community property laws and delineate how such clarification could occur.

Thinking about community property law and the joint ownership regime created through community property had me contemplating other situations of joint ownership, like tenants in common and joint tenants.  It is well-established that these forms of joint ownership grant each joint owner the ability to use the entirety of the property and the inability to exclude the other joint owner from the property.  Does that inability to exclude negate privacy rights the joint owners have in the property?  Assume A and B are not spouses, but best friends, and they buy a diary together. If A can't exclude B from the diary, can A have any expectation of privacy in that diary?

Again, the diary example is elementary, but individuals regularly buy property together--businesses, land, investments.  In many of these acquisitions, the parties will work out ex ante the rights they have in the property vis-a-vis one another.  But in the instances in which A and B do not reach an agreement ahead of time, what privacy rights do A and B have from one another with regards to the jointly-owned property?  

That's my food for thought today.  I will soon be moving away from privacy thoughts and onto thoughts about one of the most un-private events around, Mardi Gras, a multi-week festivity where property issues abound!  It's only 20 days away, so start preparing for some carnival-related posts, including a copy of my own King Cake recipe so you can all share in the revelry of the season.  

 

September Professor's Corner

It's time for this month's Professor's Corner, brought to you by the ABA Real Property Trust and Estate Law Section.  This month will be a little different because we are switching from audio only calls to webinars.   

Wednesday, September 11, 2013

12:30pm Eastern/11:30 am Central

Register online at http://ambar.org/professorscorner

September’s Program:  “Implications of Same-Sex Marriage for Real Estate and Trust/Estates Practitioners”

Either by court decree, legislative action, or referendum, same-sex marriage is now legally sanctioned in 13 states and the District of Columbia.  Thirty percent of American citizens now live in same-sex marriage jurisdictions.  Demographic trends suggest these numbers will likely increase in the years ahead.

The availability (or unavailability) of same-sex marriage presents challenges for lawyers handling real estate transactions and estate and tax planning for same-sex couples.  September’s Professors’ Corner webinar features two outstanding and highly-regarded experts to address these challenges.

Professor Patricia Cain, Santa Clara University School of Law.  Professor Cain is a national expert in federal tax law and sexuality and the law.  She previously taught for 17 years at the University of Texas and for 16 years at the University of Iowa, where she held the Aliber Family Chair in Law and also served as Interim Provost and later Vice Provost.  She has taught at Santa Clara since 2007.  Her area of specialization is taxation and estate planning for same-sex couples.  She is a Fellow of the American College of Trust and Estate Counsel, and is a frequent lecturer on tax and estate planning for same-sex couples at state and national CLE programs.

Tamara E. Kolz Griffin, Associate Director of the Estate Planning Clinic, Harvard Law School Legal Services Center.  Griffin received her law degree from Harvard and a LL.M. in Taxation from Boston University.  At Harvard, she teaches a seminar on estate planning and supervises clinical students in the areas of estate planning, permanency planning and probate matters.  She was previously a partner in the Private Wealth Services Section of the Boston office of Holland & Knight, LLP, and still maintains a private practice serving clients with estate planning needs.  She is a Fellow of the American College of Trust and Estate Counsel, and has given numerous presentations to national, state and local groups on matters related to same-sex estate planning.

Register for this FREE program at http://ambar.org/professorscorner and join us on Wednesday, September 11!

 I'll be hosting the call.  I hope you can join us!

Tanya Marsh

 

Property Issues and the Royal Wedding

A childhood full of playing Dungeons & Dragons and trading Magic: The Gathering cards has left me far too interested in the Royal Wedding (it is, sadly, the closest I'll ever get to wearing chain mail or wielding a broad axe).  Luckily, there's at least a little overlap between my scholarly interests and the pageantry of Will and Kate's nuptuials.  As far as I can tell, the wedding raises at least three property issues:

1.  The shortage of hotels has inspired many Londoners to rent out their homes and become temporary landlords.  One expert estimates that London homeowners stand to take in an estimated $170 million in rents during this week.  Prices range from $50 a night for a single room in a private home to more than $6,000 a week to rent an entire house in central London.

2.  Royal watchers are gossiping about whether Kate and Will have signed a prenuptial agreement.  Family Law Solicitor Louise Liu speculates that even though William is worth $45 million, it's unlikely he's been encouraged to get a prenup with Kate. According to Liu, while prenups are routine in the U.S., they are persuasive but not legally binding in England.

3. What titles will the Queen bestow on William and Kate?  All titles are gifts from the monarch, so it is the Queen's perogative to choose which one to grant to her grandson and his new wife.  As the Telegraph explains, "Tradition dictates that royal men receive a title on their wedding - and often more than one."  Leading contenders include the Duke of Cambridge, the Duke of Sussex, and the Duke of Clarence.  A couple of Duchies produce serious income.  Prince Charles' Duchy of Cornwall estate, which stretches over 135,000 acres in the south-west of England, has an estimated value of $1 billion (647 million pounds) and produces $25 million a year in profits.  One final note on titles; according to tradition Kate would not become HRH Princess Catherine of Wales because she is not a Princess in her own right. Instead, she becomes HRH Princess William of Wales.

If you're looking for me tomorrow, I'll be the guy having tea and crumpets, glued to the TV.

Steve Clowney