Real Property Ownership Interests in New York Explained

Although you may not realize it or at least give it too much thought, whenever you purchase real property (i.e., real estate) in New York, you have options as far as how the property is titled between co-owners. Although not every option is available under every circumstance, it’s important to understand how you are accepting title to the property and how your rights will vary depending on which ownership model you assume.

 

So how exactly can real estate be titled between joint owners in New York? There are three basic models which can be followed: Tenancy by the Entirety; Tenants in Common; and Joint Tenants with Rights of Survivorship. Circumstances will dictate which is most appropriate for your particular situation, but the first step to picking is understanding the differences between them.

 

TENANTS IN COMMON

 

When individuals take property as tenants in common, the law recognizes that each party is assuming ownership of a certain stated percentage of the property as recited in the deed. If the parties fail to otherwise identify how property is meant to be owned, the law presumes that they have elected to own it as tenants in common. Tenants in common enjoy certain privileges, including living in the property rent free and possible entitlement to credits for things like taxes, maintenance and repairs.

Owning property as tenants in common has other unique and at times troublesome characteristics. When owned in this manner, each party has the right to transfer his or her own share during life without the permission of the other property owners. For obvious reasons, this may or may not be a desirable feature of owning as tenants in common. Similarly, tenants in common have the right to bequeath their respective interests to the property by will at death. If there is no will in place, the owner’s interest in the property will still nonetheless go to his heirs in accordance with New York’s intestacy laws.

 

Just like any other relationship, sometimes owners just can’t get along and want to part ways. When relations between owners grow acrimonious relative to their respective interests in the property and they want out but cannot agree on terms, they will be forced to undertake what’s known as an action for partition. This is basically an action where the respective rights of the parties are judicially determined with an eye toward severing their joint ownership of the property.

 

JOINT TENANTS WITH RIGHTS OF SURVIVORSHIP

 

The second form of permissible real property ownership in New York is known as joint tenancy with rights of survivorship. This is a form of ownership wherein the parties are deemed co-owners of the property whose rights in the real estate automatically transfer to one another at the time of death. The deed must specifically provide language to the effect of “Bill Smith and Judy Doe, as joint tenants with rights of survivorship" to take advantage of this method. The benefit of owning property in this manner is that it allows for the automatic transfer if real estate from one owner to another while avoiding probate of that asset.

 

There are also some disadvantages to titling in this manner. By placing someone on title as a joint tenant, not only might you incur a gift tax liability, but you can never simply remove them from title if you wish to do so without their consent. Likewise, by allowing someone else title to the property, any creditors he or she might have could be able to attach a lien to the property relative to your co-tenants interest in same. While joint tenancy with rights of survivorship are nice in that they allow for an easy transfer of a significant asset, it must be recognized that certain issues might accompany that transfer.

 

TENANCY BY THE ENTIRETY

 

Last, owning property as tenants by the entirety is a form of ownership that is strictly limited to married couples under New York law. When property is owned in this fashion, the deed will contain language reflecting the parties’ relationship with verbiage to the effect of “Bill Smith and Judy Smith, as husband and wife." Where this language is missing, but the property is nonetheless obtained while the parties were married, there is a presumption that they intended to take it as tenants by the entirety. Couples do have the choice to opt out of owning property as tenants by the entirety, but in order to do so, they must state within the deed the other manner in which the wish to hold it.

 

Perhaps the most coveted feature of owning property as tenants by the entirety is that it allows each spouse to own 100 percent of the property, while simultaneously permitting the property to transfer from one spouse to the other at the time of death free and clear of any liens or encumbrances caused by the deceased spouse. Whether a good feature or bad (depending on perspective), owning property as tenants by the entirety prohibits one spouse from disinheriting the other relative to his or her interest in the property.

WHAT TYPE OF WARRANTY CAN HOME BUYERS EXPECT IN NEW YORK?

The purchase of a new home is always a big move, regardless of one’s age or financial status. When considering such a purchase, one question that may come to mind is what protections do I have against the seller down the road? Am I entitled to any type of warranty on the home? The sad reality is that in New York, as a general rule, buyers are not entitled to a home warranty, unless expressly and separately bargained for.

 

New York is known as a caveat emptor state, which basically means that buyers generally take title without a warranty as to the condition of the property or any recourse if the buyer subsequently discovers an unacceptable condition after the closing. Like most things in the law, however, there are of exceptions (albeit slight) to the rule.

 

For anyone who’s purchased residential real estate in New York, you’re probably familiar with the mandatory Property Condition Disclosure Form that most sellers complete prior to close. For those of you unfamiliar with the disclosures, this form is a detailed statement that sets forth the condition of the environmental, structural, mechanical and property service aspects of the home as understood to the best of the seller’s knowledge. When a seller completes the form, she subscribes her name to the document and confirms its accuracy. So long as a seller has not materially lied or knowingly failed to disclose a known condition or material defect, there is little recourse that a buyer has against the seller. If a seller has lied or failed to disclose a known material defect, a buyer may very well have a colorable claim against the seller for her possibly fraudulent conduct.

 

Where a seller has truthfully and fully completed a property disclosure, however, New York law shifts the burden and responsibility of discovering any other defective conditions to the buyer. For all homes, except new builds, typical contract language provides that all warranties and representations made by the seller expire once the deed has been delivered, unless specific warranties are expressly stated to survive the closing. Translated, this means that once a transaction closes, the purchaser is accepting any conditions (known or unknown) that may exist at the property. For this reason, it’s critical for a buyer to conduct a full and thorough inspection of the property prior to close. Once a deal closes, the buyer will be stuck with any conditions that could have been discovered.

 

All of that said, there is one instance outside of the exceptions discussed where a home buyer can secure an actual warranty on a home, and that is on a new build. Assuming you are the first person to purchase a home that is intended to be your primary residence, the builder will provide you with a warranty that covers construction defects, flaws in the plumbing, electrical, heating, cooling and ventilation systems servicing the home and material defects. These warranties often have monetary limits attached and expire in stated periods depending on the nature of the warrantied item. Because of these time periods, it’s crucial that homeowners seeking to make a claim under their new home warranty do so timely and in accordance with the stated periods, or they might lose any rights they otherwise had.

 

The purchase of a home is definitely not a trivial matter. When it comes down to the nuts and bolts of your purchase make sure you know your rights both prior to and after the closing. Where questions do exist, seek the counsel of a competent professional, whether it be your attorney and/or your real estate agent.

ESTATE PLANNING CHECKLIST: Making Your Family's Life as Easy as Possible When You Pass

As people move through their lives, they hit certain milestones along the way: getting a driver’s license; graduating college; getting married; celebrating the birth of their first child; and yes, even drafting your first will is a milestone. While planning for the inevitable is often times a topic that many people tend to avoid, postpone or even disregard, a little bit of planning on your part can make a huge difference to those you leave behind. While this article isn’t specifically about drafting a will, I at least hope to leave the reader with a strong impression about how important it is. A will is an essential document that will direct your final wishes; without one, you are simply at the mercy of what the Court decides.

 

That said, the remainder of this article pre-supposes that you have already had the forethought to prepare a will. So, with that out of the way, what else do you need to worry about? The grief of a family member passing is hard enough to handle without piling on the frustration of trying to sort through that loved one’s estate. When you pass away, your goal should be to make the process as easy on your loved ones as possible. Believe it or not, that actually is easier than it might sound.

 

The main thing you can do to help ease the process for those you leave behind? BE ORGANIZED! Trite as it may sound, a little bit of planning now, wherein you gather all of the important documents in your life, will make a huge difference later on. While the list isn’t long, I would urge you to gather and keep the following documents together in a safe place that loved ones can access when and if necessary.

 

As alluded to above, perhaps the most important document you should keep is your will. This is the basic roadmap that directs how you want your estate handled. As a general rule, only an original will can be submitted to probate in New York. It’s therefore critical that the original be kept safe. As a general guideline, I typically recommend that my clients leave their original wills in my custody so there is never a question about their location, while they are given copies for their own records. Clients, however, are always free to keep the originals, but it then falls on them to ensure their safekeeping.

 

In addition to your will, there are a few other documents that I would urge you to gather together. Please keep in mind that these are general categories to be used for the sake of guidance, but they are fairly comprehensive. The first category I would suggest is life insurance policies and retirement accounts. Individuals often times have a long and varied work history, and will have accumulated accounts across many sectors. Family members cannot be expected to know the whereabouts or identity of each account without you providing that information. I would suggest the same holds true for bank accounts. Gather any information you can to make locating bank accounts and safe deposit boxes as easy as possible. Finally, I would recommend gathering together all of your major documents of ownership; this would include deeds to real property and titles to any vehicles that you might own. With all of these documents in hand and readily discoverable by your loved ones, you’ll be able to rest a little easier knowing that at least one burden will be lifted from your family once you pass.

SO WHAT EXACTLY IS TITLE INSURANCE ANYWAY?

As you’re getting ready to close on your new home, it’s always a good thing to know what you’re looking at in terms of closing costs. For those of you who’ve already done your homework and have some idea of what to expect, it will come as no surprise that one of the largest components of those expenses is likely to be the title insurance you purchase. Even though you might know you need to get it, do you understand what it is and what protections it provides? If that inquiry seems daunting, I’ll puzzle you one more riddle. To further complicate matters, if you’re taking out a mortgage, did you know that you will not only be required to secure a Lender’s Title Insurance Policy, but you have the option (at least in NY) of also picking up an additional Owner’s Title Insurance Policy? What’s the difference between those policies? It’s wise to have a firm grasp on these concepts before you walk into the closing room just to make sure your interests are protected.

 

What is Title Insurance?

 

At its most basic level, title insurance protects the insured against a myriad of title problems that can hinder the transfer of a property. These are usually hidden defects that title searches somehow miss, which rear their ugly heads down the road. Some of the defects that title insurance can guard against include:

1. Forged deeds, mortgages, satisfactions or releases of mortgages. 2. False impersonation of the true owner. 3. Instruments executed under a fraudulent or expired power of attorney. 4. Deeds that appear, but it is determined they were conveyed without the consent of the grantor or delivered after the death of the grantor. 5. Property that was improperly deeded to a minor. 6. Outstanding rights not of record and not disclosed by survey. 7. Property descriptions that appear but are not actually adequate. 8. Instruments that were executed under duress.

In terms of logistics, in order to secure title insurance, an insured will pay a one-time premium, typically at the time of closing, in order to safeguard the property up to the amount of the policy for possible later claims related to the title being defective.

 

Leading into our next topic, I’ll pose this question to you – is the purchase of title insurance obligatory? Like so much in life, the answer depends. If you’re paying cash for the property, the answer is (typically) no, but if you’re taking out a mortgage, the lender will require a policy be purchased. Depending on where you live, securing an owner’s policy may be a requisite component to delivering good title, while in other areas it’s merely an optional add-on that you can purchase if you choose to do so.

 

What’s the difference between a Lender’s Policy and an Owner’s Policy?

 

Now that we have some basic understanding of what title insurance does, we need to look at the different types of policies available to you. As indicated above, if you are taking out a mortgage, you will absolutely be required to obtain title insurance in an amount equal to the amount of the loan. This type of policy is known as a lender’s policy. There are a couple important things to remember about a lender’s policies. First off, even though it’s the bank that will require a lender’s policy be secured, it should come as no surprise that you will actually be the one to pay for it – upfront at the time of closing. Second, you should recognize these policies only last until the loan is repaid. Once a lender’s policy terminates, you are on the hook for defending any title claims if you haven’t made alternative arrangements to protect yourself. Remember: lender’s policies protect the lender for the amount it has loaned, but it does not protect your equity in the property. Lender’s policies do not protect you, either directly or indirectly, but the lender alone against loss.

 

In light of that fact, owner’s policies (otherwise known as Fee Policies) are offered. These are policies, which as discussed above, are either mandatory or optional depending on where you live. In Western New York, there is no requisite that buyers secure an owner’s policy, but it is nonetheless a good idea to do so. Unlike a lender’s policy, an owner’s policy does as its name purports to do and protects an owner’s interest against possible title defects. An added benefit of owner’s policies is that, unlike lender’s policies which are limited in duration, these policies will last indefinitely. Although an owner’s policy cannot guarantee that no claims will ever be made, so long as you hold an interest in the property, your owner’s policy will provide you some semblance of protection against possible title claims that may arise.

 

This article is intended as a brief primer meant to give a general overview concerning title insurance. Please be advised that there are numerous nuances concerning title insurance that I’ve not covered in this article. If you have additional questions about those nuances, it’s a good idea to either study up on the topic or speak to a qualified professional. I’ll leave you with one final note. When compared to the cost of a standard lender’s policy, I’d urge that it’s usually advisable to obtain an owner’s policy to protect your own interests; the additional cost for that extra coverage is usually relatively small when compared to the lender’s policy, especially given the potential downside (even if slight) of a lengthy and expensive title challenge down the road.

SELECTING A GUARDIAN: THE BASICS OF WHAT YOU NEED TO KNOW

Talk about a difficult conversation to have. Can you imagine a young couple contemplating – of their own volition mind you – a future for their child in which those same parents don’t play a central role? Almost as much as parents pray that their children will outlive them, parents likewise universally hope that they will be around to help guide and shape their children’s lives long into their adulthood.

While an uncomfortable conversation to have, estate planning asks parents to consider what will happen to their children in the hopefully unlikely event that their own lives are cut short before they can see their children into adulthood. While no parent wants to think about it, there is possibly no more important choice that parents can make than deciding who will raise their children if something were to transpire that prevented them from doing so themselves. Most people would prefer to control how their assets are distributed at the time of death rather than leave the decision to the courts. By way of comparison, how could the decision of who raises your children be of any less import? DON’T leave the choice to someone else. Plan well and plan in advance. With so much going into the decision, the hardest part is deciding who that guardian(s) should be, and that’s the focus of today’s article.

 

THINK LIFESTYLE

 

When choosing a potential guardian for your children, one of the themes that should guide your decision is lifestyle. When I refer to lifestyle, I’m not talking about making sure your child is raised in the lap of luxury with your rich cousin who owns a bank. I’m talking something much more fundamental than that – choose someone that you trust to love and care for your children in the same manner that you would do if you were around.

 

There is no question that this decision will be guided by your own preferences and experiences. Recognition is the key, however. Parents need to recognize that one choice isn’t necessarily better than another, but each choice carries with it long term consequences. Just think about. Would you expect that your children’s informative experiences are going to be the same if they are raised by your divorced, workaholic brother as compared to them being raised by your stay-a-home sister and her husband? Of course not.

 

Every person you contemplate as a guardian will have his or her good and bad traits. It’s your job to figure out who strikes the right balance for what your child needs. The decision will (or should) be shaped by the values and philosophies you hold dear. When choosing a potential guardian, just a few things you should think about include: their religious beliefs; their moral values; their educational values; and their societal/political philosophies. All will have a very real and lasting impact on your child’s development, so be sure that the guardian’s values and philosophies are an acceptable match for how you want your child raised.

 

THINK OUTSIDE THE BOX

 

When considering potential candidates for their children’s guardian, one of the questions that clients have often asked is, “Am I limited to choosing a family member?". The answer: absolutely not! Although many turn to brothers, sisters and sometimes even parents as their first choice for guardian, there is nothing to say that trusted friends wouldn’t be an equivalent or even far better selection than a family member. So long as the potential guardians have a real and trusted relationship with a child, I think they are a valid candidate for the duty.

 

THINK PRACTICALLY

 

The simple fact of life is that not every person is a suitable guardian for every child. It’s a case by case decision that I leave to every readers’ discretion, but I’ll take just one situation as an example to illustrate my point. Would you necessarily want your elderly parents to raise your toddler if something should happen to you? Maybe not. Aside from the fact that young children are high energy and require a great deal of patience and stamina to keep up with them (items which older populations are sometimes in shorter supply of), you also have to think long term. Parents want to provide as much support and stability for their children once they pass as possible. Depending on circumstances, it may not be the wisest choice to place a young child with older guardians who are themselves at risk of passing before the child reaches adulthood. It’s a personal choice though, and nothing says that one selection is more appropriate than another. The bottom line is this: when making the decision, you need to think not only about your child’s circumstances (are they older, younger, special needs, etc.), but you need to consider the circumstances of the individuals that you are considering to make sure they are good fits both long and short term. Just a few issues to consider: are they elderly; divorced; close to your family (geographically and emotionally); suffer from addictions; have their own children; and the list goes on and on… All will have an impact on your children, so be sure to think long and hard on your choice.

 

TALK IT OUT

 

Now that you’ve gone through the mental exercise of figuring out who is the best fit for raising your children, what comes next? The obvious answer is reduce it to writing. While correct, that’s only partially right. Yes, you need to consult a professional to ensure that your wishes are reduced to writing to make sure they are given later effect, but even before that’s done, there’s something else you need to do. Talk to the potential guardians! Let them know what you’re thinking and why you’d like to select them. Chances are good that they will be honored to take on the duty, but there’s no guarantee unless you confirm with them first. The last thing you want to do is name someone as a guardian who doesn’t want or isn’t prepared for the responsibility.

 

As with every other aspect of the law, there are, of course, nuances to everything. Consult with a professional to ensure you know your rights, options and obligations going forward. This is your children’s future we’re talking about, so do it right.

WHAT IS A POST-POSSESSION AGREEMENT AND SHOULD I USE ONE?

In the world of residential real estate, it’s not uncommon for a seller to ask a buyer to retain possession of the premises being transferred for a certain period of time following the closing. Although you might ask why a buyer would even consider such a request, sellers typically inquire as to this type of accommodation when faced with some circumstance that beyond their control. Such circumstances usually involve sellers waiting on contingencies of their own to be satisfied, like the completion of a new home build or their own purchase to close.

When faced with a seller asking for post-possession as a component of closing, buyers are confronted with one of a few choices. Depending on your circumstances, the terms of the contract and when the seller has asked for post-possession, the simple reality is that a seller may have no basis to retain possession after the closing. Under such circumstances, the buyer is under absolutely no obligation to allow the seller to stay in the home. The result may seem harsh, especially if the seller is claiming they will be homeless until whatever predicament their facing resolves, but so go the whims of real estate. It's not a buyer's obligation to bend over backwards to accommodate a seller in an unfortunate situation. That said, karma does have a funny way of exacting its revenge, so keep that in mind before disregarding the needs of your seller. You never know when you might be in that same position.

If circumstances allow, the best alternative to avoid headaches and post-possession issues is to simply postpone the closing until the seller has resolved whatever outstanding issue(s) necessitated the post-possession in the first place. So long as its not an unduly burdensome delay that causes you to suffer damages, especially of the financial variety, taking possession of a premises in vacant condition at close is almost always preferable.

When taking vacant possession isn’t possible, the final alternative is to execute a post-possession agreement. These agreements allow a seller to remain in the property for a certain period of time following the close, and they should be finely tailored by counsel to meet your particular circumstances. There are risks associated with allowing someone to remain in the premises after closing, and it is your goal to minimize those risks as much as possible if you decide to allow them to stay.

Some of the unfortunate but very real considerations that you may face if the seller enjoys an extended stay are: what happens if they stay past the agreed upon term and won’t vacate? What happens if they damage the premises while occupying it? What happens if a guest of the seller is injured on the premises while occupying it? Who pays your carrying costs while the seller is occupying it? And what happens if the seller takes or removes something from the premises that they weren’t supposed to when they finally do vacate? At a minimum, post possession agreements should provide for a few basic things to address some of these potentialities.

The first thing I would recommend is that the post possession period be for a short a time as possible. These agreements are usually intended to cover a matter of days, and not really weeks or months. Second, the agreement should contain language affirmatively stating that NO landlord tenant relationship has been established or should be construed by its execution. Third, the agreement should set forth not only a per diem daily amount to be paid to the buyer during the seller’s ongoing occupancy of the premises, but it should require the seller to hold back a set escrow amount to be paid over in case of damage to the property or if the seller stays longer than agreed. Finally, the agreement should require the seller to turn over the premises in broom clean condition at the time he vacates, just as he would have been required to do had they vacated at the time of close. There are certainly other things that you might consider including in the agreement (i.e., seller maintaining insurance coverage during occupancy, etc.), but I would suggest that the above are the bare minimum essentials.

While post possession agreements have their place and are certainly tolerable when circumstances dictate, if you have to use one, at least do so with a full understanding of the potential risks involved. Some deals are inherently more risky than others, so always assess your particular circumstances to determine the advisability of utilizing a post possession agreement.