Tom and Jerry are joint tenants on a piece of land in Stillwater, Oklahoma. Without Jerry's knowledge, Tom executes a mortgage on his undivided interest in the property to secure a personal loan. Tom subsequently defaults on the loan and the lender seeks to enforce the mortgage. Which of the following best describes the legal effect of Tom's mortgage on the joint tenancy under Oklahoma law?
Correct Answer
A) The mortgage does not sever the joint tenancy; if Tom dies before foreclosure, Jerry takes the entire property free of the mortgage by right of survivorship.
Oklahoma follows the lien theory of mortgages (Title 46 O.S.), meaning a mortgage does not transfer title—it merely creates a lien on the mortgagor's interest. Because Tom's mortgage only creates a lien rather than conveying title, it does not sever the joint tenancy under lien theory. If Tom dies before the lender forecloses, the right of survivorship operates and Jerry takes Tom's interest free and clear of the mortgage lien. The lien is extinguished because it attached only to Tom's interest, which no longer exists upon his death. This is a critical Oklahoma-specific result flowing from the lien theory of mortgages.
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Related Topics & Key Terms
Key Terms:
Related Concepts
Community property is a system where property acquired during a marriage is owned equally by both spouses.
A freehold estate represents ownership of real property with an indefinite duration.
Joint tenancy is a form of co-ownership in which two or more persons hold equal, undivided interests in property with the right of survivorship. When one joint tenant dies, their interest automatically passes to the surviving joint tenants.
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