Kresha v. Kresha
371 N.W.2d 280, 1985 Neb. LEXIS 1145, 220 Neb. 598 (1985)
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Rule of Law:
A lease executed by one co-owner of a property on their own interest, without the consent of other co-owners, is valid as to the lessor's interest and remains a valid encumbrance on that interest even after it is transferred to another co-owner who had knowledge of the lease.
Facts:
- On August 30, 1979, Adolph Kresha and Rose M. Kresha were a married couple who co-owned two tracts of land.
- On that same day, Adolph Kresha, without the consent or knowledge of his wife Rose, leased non-homestead lands to their son, Joseph A. Kresha, for a six-year term.
- Rose Kresha learned of the lease no later than March 12, 1980.
- Following the couple's divorce, a decree awarded the full ownership of the leased lands to Rose Kresha, and a deed was recorded on August 16, 1982.
- After acquiring the title, Rose Kresha attempted to terminate the lease by sending letters to her son.
- Joseph Kresha asserted that his lease was valid and refused to vacate the lands.
Procedural Posture:
- Rose M. Kresha brought a forcible entry and detainer action against Joseph A. Kresha in the county court to obtain possession of the lands.
- The county court, as the court of first instance, dismissed Rose Kresha's action.
- Rose Kresha, as appellant, appealed the dismissal to the district court.
- The district court, an intermediate appellate court, affirmed the county court's judgment in favor of Joseph Kresha.
- Rose Kresha, as appellant, then appealed the district court's decision to the Supreme Court of Nebraska.
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Issue:
Does a lease executed by one co-owner on his interest in a property remain valid against the other co-owner who subsequently acquires the entire ownership of the property with knowledge of the lease?
Opinions:
Majority - Caporale, J.
Yes, a lease executed by one co-owner on his interest remains valid against a subsequent owner of that interest who had knowledge of the lease. The court reasoned that one co-owner (a joint tenant or tenant in common) has the right to lease or otherwise encumber their own interest in the property, though they cannot encumber the interest of the other co-owners. When Rose Kresha acquired Adolph Kresha's interest through the divorce decree, she took it subject to the pre-existing encumbrance of the lease, of which she was aware. This is analogous to any purchaser of property who acquires it subject to a known, existing lease.
Analysis:
This decision solidifies the principle that an interest in co-owned property can be independently encumbered by one co-owner. It clarifies that such an encumbrance, like a lease, 'runs with the interest,' meaning it remains valid even when that specific ownership interest is transferred to another party. The case underscores the importance of due diligence in property transfers between co-owners, particularly in divorce settlements, as the recipient of a property interest takes it subject to any valid, known, pre-existing leases or encumbrances created by the former owner.
