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Joint Ownership of Real Property in New York

Tenants in Common

Real estate owned by one or more persons as tenants in common give a percentage ownership to each person, and upon that owner’s death, their percentage share goes to their estate. If they have a Will, it goes to the persons named in their Will. If they die without a Will, then it goes to their legal heirs. (This could become problematic if the person has many heirs entitled to share, as it may render the property unmarketable.) With this type of ownership, each owner has the right to transfer their share during their lifetime, without obtaining the permission of the co-owner. If the Deed is silent as to form of ownership and just lists the names, then it is presumed that the parties own as tenants in common. If one party wishes to have the premises sold, they can bring what is known as a partition action, which forces the sale of the property, sometimes at auction. Any party to the deed has the right to live in the premises without paying rent to the other owners. In addition, they may be entitled to credits for items such as taxes, maintenance and repairs. If the premises are rented to a non-owner, all owners would be entitled to share in the ent, but should be aware that a formal demand against the receiving owner is necessary to sustain a claim for rent in a partition action. Of course, any party can settle and buy-out the other party, if an agreeable arrangement can be reached prior to being sold at auction. This type of action usually arises during an estate situation, where one party lives in the premises, and other heirs feel that they are being excluded from the estate.

Tenancy by the Entirety

This form of ownership may only be held by a husband and wife. The Deed should recite the names as follows: “John Doe and Jane Doe, husband and wife” or John Doe and Jane Doe, his wife.” If silent, it is presumed that a married couple has taken as tenants by the entirety. If a different form of ownership is desired between a husband and wife, then it must be specified as either tenants in common or joint tenancy with right of survivorship. Under a tenancy by the entirety, each spouse owns 100% of the property, and upon the death of one spouse, the other spouse owns the property free and clear of any encumbrances that may have been caused by the other spouse. For example, if one spouse sells his share of the property, the owner may not come onto the property or force a partition (a sale of the property). The only way that person could have an interest in the property is if the other spouse dies first. He would then step into the shoes of the living spouse who transferred his interest. On the other hand, if a husband who transferred his share dies first, then the transferee would have no interest, since the wife would take the entire property free and clear of any actions taken by the husband. In the same vein, neither spouse can disinherit the other spouse by leaving the property to someone else in their will.

Joint Tenants with Rights of Survivorship

This form of ownership transfers the co-owner’s share to the other owner(s) upon their death. In order for it to apply, the Deed must specify the words, “as joint tenants with rights of survivorship” after the names of the grantees. It is possible to have different combinations of ownership, such as two persons with rights of survivorship, and another person as a tenant in common.

If joint owners wish to change their form of ownership all that need be done is for the parties to reconvey the Deed to themselves, with the proper language included.

The above is general information, and any transfer of ownership should be supervised by an attorney to make sure that your rights are protected, and that the Deed will be accepted by the County Clerk’s Office for recording. If you don’t have the Deed recorded, the property can be reconveyed by the grantor to someone else, and if they have no actual notice of your Deed, and they record their Deed before you, then you will lose ownership of the property. There are documents that need to be prepared and filed with the Deed for recording purposes, and there are specific requirements as to how a Deed must be drawn to be accepted by the County Clerk.

Cynthia M. Burke, http://www.nyrealtylaw.com

Categories: Real Estate Law