joint & several liability or proportionate liability

Started by BobD4 • 3 replies • 1550 views

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BobD4 (up north)
Posts: 1,002

Posted:

Has anyone out there gone through the process of incurring civil liability in common with other co-owners (of real property) where parcelling out such liability to the victim(s)- eg for negligently causing harm or injury - is NOT by a formula set by U.S. state or Provincial government legislation ?

If so, you have found out - or will find out - whether your shared liability is the victim- friendly "JOINT AND SEVERAL" ( aka solidary or in solidum ) or instead is the wrongdoer-friendly "PROPORTIONATE".

If your shared ownership common lands are NOT subject to a restrictive covenant HOA/POA/legal trust, nor a formal template like condo/strata /syndicat, this question looms very large. Many condo laws limit condo owners -after the community generally is held liable for some civil wrongdoing- merely to the proportionate formula ( limited by each co-owner's percentage of ownership )

1- If anyone out there has gone through this process of being held liable as a co-owner, which of these was held to apply to you and your partner co-owners ?

2 If it was Joint & Several, did the civil victims execute selectively against merely one co-owner ? What sort of mayhem ensued ?

All answers very much appreciated

Bob D ( not in New York but nearby )

LarryB13 (Arizona)
Posts: 4,099

Posted:

Bob,

I live in a state where personal injury lawsuits are decided based on proportional liability. The following true story illustrates that it is not always the solution it should be:

Vince and Connie were a couple who was not well-liked. Connie was injured when an elderly man failed to yield right-of-way at an intersection, turning left in front of her car. Though her injuries were not life-threatening, Connie suffered severe pain that continued long after the accident. She and Vince sued the elderly man, whose insurance company offered a settlement of $15,000. Vince and Connie felt they should get more and proceeded to trial.

The judge instructed the jury to determine the proportionate liability of each driver (Connie and the elderly man), total the damages, and assign each party his portion of the damages. Because the jury took a dislike to both Vince and Connie, they assigned 60% of the blame to her. Vince and Connie found themselves with a judgment of $42,000 against them. Even though I did not like Vince and Connie, I could see no fault on her part for the accident and would have found the other driver fully at fault.

BobD4 (up north)
Posts: 1,002

Posted:

Thanks very much Larry.

( PS The following illustrates the victim-friendly JOINT & SEVERAL execution of judgments documents as it may target those with 'deep pockets or insurers' instead of merely the blameworthy among multiple defendants :

Unlike what MAY BE ( ? ) the default setting ( ? ) in many jurisdictions for non-condo shared ownerships/ multiple owner tenancies in common, at least one condo corporation in our jurisdiction totally stonewalled a lawyer seeking to execute a judgement issued against that condo corporation.

Our jurisdiction's 1998 condo act like many others legislates the blameworthy-friendly PROPORTIONALITY where judgments are rendered against a condo corporation .

Lawyer Ray Mikkola was next forced to notify owners unit by unit that execution would proceed unit by unit against each unit including by lien and if necessary mortgage-like remedies. Think attornements, powers of sale, foreclosures.

The subsequent shriekings showed many unit owners had been in the dark until their bluff was called, but Mr Mikkola was still limited only to hitting each unit by the proportion scheduled in the condo declaration. Imagine if a couple - blameworthy for a corporation wrongdoing only as statutory co-owners - were told that Mr Mikkola would only execute against them because they had some bucks, and would be around to seize their Cadillac tomorrow. 'Joint and several' by-passes 'unit by unit' that where a civil judgment has hit multiple arms-length co-owners ).

Thanks & comments are invited and much welcome. Bob D (not in New York but nearby )

BobD4 (up north)
Posts: 1,002

Posted:

sorry for the hasty errata above : the correct spellings are "attornment" with only a single 'E', and "judgment" usually with only a single E except in USA.

Should clarify that in the above explanation, CONDO corporations in our jurisdiction are legislated owned NOT by the condo corporation but literally by condo unit owners of record, such being unit by unit in the proportion specified in the Declaration. (Our jurisdiction's condo common elements are judgment-proofed). Not unusual in US either.

But such is totally the opposite case where real property can be co-owned by dozens - maybe hundreds - of non-condo (tenant in common) co-owners rather than in 'trusteeship' nor by a POA/HOA. There may be NO legal HOA nor POA at all - as here - in a "building scheme" of the 1908-09 judicial criteria. This ain't Florida.

So has anyone's (non-condo ) shared ownership community discovered its default setting for civil wrongs' liability ? What was it and what happened ?

eg the old farts in 'no vires' POAland here start burning common land debris on common land beside an owner's home. The fire negligently spreads, or the ongoing buckshee illegal activity taints the nearby neighbouring victim home's value for resale or it triggers a latent defect lawsuit after the victims try to sell out . . .

All answers are much appreciated.

Bob D ( not in New York but nearby )

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