Kresha v. Kresha

Nebraska Supreme Court · Property

PropertyConcurrent ownershipLeasesjoint tenancytenancy in commonleasecotenantco-owner

Facts

While married, Rose M. Kresha and Adolph Kresha co-owned two tracts of nonhomestead land. On August 30, 1979, Adolph, without Rose's knowledge or consent, executed a written 6-year lease of the land to their son, Joseph. Rose learned of the lease by March 12, 1980, later obtained the land in the dissolution decree, and after the deed to her was recorded in 1982, she notified Joseph that she was terminating the lease and later demanded possession. Joseph remained in possession, and Rose brought this forcible entry and detainer action to remove him.

Issue

Whether one co-owner could validly lease his own interest in jointly owned land without the other co-owner's consent, and if so, whether the other co-owner, after later receiving full title to the land in the dissolution, took the property subject to that leasehold interest.

Rule

One of several concurrent owners may lease or encumber his or her own interest to a third person, but such a lease does not bind the nonleasing co-owner's interest absent consent or ratification. When a person later acquires the entire property with knowledge that the lessor's fee interest is already encumbered by an existing lease, the transferee takes subject to that lease as to the lessor's former interest.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In Lincoln, Nebraska, Ava Moreno and Daniel Price own a warehouse as tenants in common. Without Ava's consent, Daniel signs a three-year lease giving Midtown Fabrication, LLC possession of the entire building. Ava promptly objects and sues to remove the tenant from the whole property.

What is the best statement of Midtown Fabrication's rights?

Explanation. One concurrent owner may lease or encumber only his or her own interest. A lease executed by fewer than all cotenants does not bind the nonleasing cotenant's share unless that cotenant consents or ratifies. Thus Midtown Fabrication gets only the rights Daniel could convey and no greater rights. (Derived from Kresha v. Kresha (n.d.).)