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Jeanne M. Reardon
Jeanne M. Reardon
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Serving Long Island & Greater New York
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Real Estate Law Blog
Real Estate Law Blog
Blog
Joint Ownership of Real Property in New York
| Posted on May 13, 2018 at 6:21 PM |
 Joint
property ownership can be a great solution for people who want to own a home,
especially for first-time buyers. But joint ownership can limit your rights and
options -- not only while you own the property, but also when you want to
transfer ownership to an heir or another buyer. There are three major forms of
joint property ownership (or "concurrent ownership") -- tenancy in
common, joint tenancy, and tenancy by the entirety.Tenancy
in common (sometimes called a "TIC") is the most popular form of
concurrent property ownership. Tenants in common (or co-tenants) each own an
equal share of a piece of property -- whether it's a house, an apartment
building, or other type of real estate. This generally means that each
co-tenant has an equal right to possess or use the entire property, and that
the rent or maintenance costs of the property are shared among the co-tenants
according to their ownership interest. Each co-tenant also possesses a share in
the value of the property as it appreciates. Real estate owned by one or more
persons as tenants in common gives 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-at-law. 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, then there is a presumption in the law that the parties own as
tenants in common. Any co-tenant has
the right to live in the premises without paying rent to the other owners, and
every co-tenant may be entitled to credits for items such as taxes, maintenance
and repairs. If the premises are rented to a non-owner, all co-tenants would be
entitled to share in the rent. A
co-tenant can transfer interest in a tenancy in common to another buyer or to
an heir -- via a will, for example. A co-tenant can also mortgage a share in
the property. What a co-tenant cannot do is transfer or sell the other
co-tenants' interests in the property. Once a co-tenant's interest in a tenancy
in common is transferred, the new owner steps into the shoes of the co-tenant
seller and becomes a tenant in common with the other co-tenants. Joint
Tenancy Joint
tenancy is sometimes called "joint tenancy with right of
survivorship." Joint tenancy ownership implied that a joint tenant lost
all interest in their property when they died. The deceased person's interest
was automatically transferred to the other joint tenant. Thus, in a joint tenancy, the last surviving
joint tenant owned all the property outright. If
you want to create a joint tenancy or take possession of property as joint
tenants, make sure that your lawyer or real estate agent is very careful about
the phrasing in the deed or will. In general, courts prefer very specific
wording that shows the desire to create a joint tenancy and the right of
survivorship and not a tenancy in common. For example, a deed or will
might include instructions that read "to A and B, as joint tenants with a
right of survivorship, and not as tenants in common." Sometimes,
under state law, a joint tenancy will automatically convert to a tenancy in
common. For example, if joint tenants die simultaneously, their property is
treated as a tenancy in common by the courts, for purposes of inheritance and
estate distribution. And if two or more people inherit property from a last
surviving joint tenant, they do so as tenants in common instead of as joint
tenants. Tenancy
by the Entirety The third form of ownership -- tenancy
by the entirety -- is only available to a married couple who owns a piece of
property together. The couple must be married at the time they
acquire the property and must remain married in order for the tenancy by the
entirety to be valid. If a married
couple divorce after taking title to the property as tenants in entirety, they
then become tenants in common. 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. Not
all states recognize tenancies in entirety -- but those that do often presume
that a grant of property to a husband and wife automatically creates a tenancy
by the entirety, unless some other type of ownership is specified. 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 in New York State, 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. Thus, if one
spouse sells or mortgages the survivorship interest to a third party, the third
party will get only a contingent interest.
For example, where the husband conveys or grants a mortgage to a third
party, the third party will get nothing if the husband predeceases the
wife. It the wife dies before the
husband, the third party will own the property outright, or will have an
enforceable mortgage on the husband’s full fee interest. Neither spouse can disinherit the other
spouse by leaving the property to someone else in their will. The Law Office of Jeanne M. Reardon assists New York property owners with
strategies to protect and pass on their homes and real estate investments. To speak with
an experienced New York deed attorney, call us at (516)
314-8433 or e-mail us. To learn more about our deed transfer services visit us
at: www.jreardonlaw.com/Deed-Transfer.html |
Categories: Deeds, Home Buying and Selling, Types of Ownership of Real Property
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