Real Property Law Assignment Essay

679 Words Sep 13th, 2012 3 Pages
Anna and Mark are residents of Memphis, Tennessee. While they were married, they purchased a condominium in Gatlinburg, Tennessee for vacation purposes. They purchased the condominium with marital funds and as tenants by the entirety. In 2004, Mark and Anna divorced, but maintained a friendly relationship. Since they both wanted to continue to have access to their condo in Gatlinburg, they had their lawyers insert the following clause into their divorce agreement:

"Both parties hereto agree that as long as both parties are living, neither party may sell, encumber, or otherwise partition our condominium in Gatlinburg, TN without the consent of the other party."

In 2012, Mark has some financial difficulties and really needs the
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Anna and Mark's case is much like McGahey v. Wilson. Mark and Anna's settlement agreement, like McGahey and Wilson's, did not provide a reasonable time limitation for the restraint. It also did not provide any indication as to the parties' intentions for agreeing not to sell or partition the property. To maintain the enforceability and rigour of the agreement not to sell or partition property, since there was no period of limitation expressed, there must be evidence of the reason for the restraint adequate enough to allow for the determination of a reasonable duration necessary to achieve such result. See McGahey v. Wilson, 2001 Tenn. App. LEXIS 499. There was no such evidence present here. Therefore, the agreement that was made between Mark and Anna is an invalid restraint on alienation.

Mark and Anna purchased the condo as tenants by the entirety, which only exists between husband and wife and is terminated upon divorce. Unless stated otherwise, it then becomes a tenancy in common. It has not been stated otherwise which means that Mark and Anna are now tenants in common. Tenancy in common is defined as a tenancy between two or more individuals who may hold either equal or unequal shares, where each person has an equal right to possess the entire property, with no right of