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Jul 01

CASE STUDY SERIES PART II: Husband and Wife in Title

By Peter M. Carrozzo, Chief Counsel Cornerstone Land Abstract

Based on the background material from last month’s blog on joint-ownership real property, we will now tackle the file that appeared on my desk recently.

On a Nassau property that we were insuring, the last deed of record, dated and recorded in 1999, recited a husband and wife in title as “tenants in common.” The parties originally went into title as husband and wife in 1981 and the change took place 18 years later. Within three months of the deed into the parties as tenants in common, the husband passed away. Why would the parties transfer title so close in time the death of one of the spouses? Before that question is tackled, we must review the forms of joint ownership of real property.

Our scenario complicates these rules. Since the deed contained a specific statement of the intention of the parties to establish a tenancy in common, the husband and wife had two distinct and independent interests separately transferable without the mutual assent of the parties.  Knowing the reasons behind this transfer might help us understand the proofs that are necessary to insure title. However, in our scenario, and as is all too often the case, the original spouses are deceased and their reasons are unknown.

One reason why a husband and wife might enter into a tenancy in common is for estate planning purposes. Here the husband passed away within three months of the transfer. They may have had a reason to create two separate interests in the premises but that is impossible to discern from these facts. If this were a second marriage, we could assume the spouses wanted to preserve each half of the premises for their separate children but that was not the case. One other possibility is that the parties intended to enter into a separation agreement and perhaps an eventual divorce.

None of these possibilities gives a clearance attorney great comfort so we must treat the deceased spouses as legal strangers and obtain proofs accordingly. The proofs would include death certificates, copies of wills, letters from the Surrogates Court (letters testamentary if there is a will and letters of administration if there is not a will), and possibly heirship affidavits from disinterested persons familiar with the estate but not standing to gain financially from the sale of the premises. In our scenario, there were no separate heirs of the spouses and they had no intention of separating. We established this with the proofs listed above and strong heirship affidavits from disinterested persons familiar with both decedents.

The complexity of the scenario outlined above shows that the decision to transfer title should involve considerable thought. Based on our review of the deed, the transfer in question appears to have been done in consultation with an attorney since the deed was returned to the address of counsel. That allowed us to conclude there was a valid reason for the transfer but not the actual reason. It is important to take into consideration all possible ramifications and seek the advice of professionals. The ramifications of these acts can cause considerable issues down the road for heirs. Our goal, however, is to clear title and work with you to get this done.

Before transferring title with respect to join-tenants, we invite you to consult with us on your transaction. Contact us at: info@cltitle.com | (212) 840-0071.