Tenancies in New York
Contents
Overview
There are three types of tenancies or ways in which two or more people may share ownership in real property: Joint Tenancy, Tenancy in Common and Tenancy by the Entirety.
Tenancy by the Entirety
A tenancy by the entirety is a form of joint tenancy specifically for spouses who are legally married. A tenancy by the entirety creates a fictitious unity between a husband and wife, with a right of survivorship. A conveyance to a husband and wife, who are legally married, will create a tenancy by the entirety unless the conveyance document specifically states otherwise.
A tenancy by the entirety may not be broken unilaterally. It may be broken only by death of a spouse of dissolution of marriage and in that case will revert to a tenancy in common.
This also poses a unique situation with regard to creditors. Since there is a unity of ownership, a creditor of one tenant by the entirety may only be satisfied if the debtor spouse survives. If the debtor spouse does not survive the debt will be extinguished. However, this does not apply to Federal Tax liens against one Tenant or a bankruptcy filed by one tenant by the entirety. The Internal Revenue Code and Bankruptcy Code allow for enforcement by sale of the property in the case of a federal tax lien or filing of bankruptcy by only one joint tenant, tenant in common, or tenant by the entirety.
Creation Language
No special language necessary. A conveyance to a husband and wife, who are legally married, will create a tenancy by the entirety unless the conveyance document specifically states otherwise.
Joint Tenancy with Right of Survivorship
Creating a joint tenancy requires four unities: Time, title, interest and possession. The interest of all joint tenants must vest at the same time, through the same instrument, with the same duration and each joint tenant must have a right to possess the whole property subject to equal rights of their co-tenants.
The distinguishing characteristic of a joint tenancy is the right of survivorship. When one joint tenant dies their interest in the property will be automatically extinguished and their interest will vest in the surviving joint tenants by operation of law.
Any disruption of the four unities will break the joint tenancy and ownership will revert to Tenancy in Common.
Creation Language
In order to create a joint tenancy the deed will contain the following recital “as joint tenants with rights of survivorship” or “as joint tenants”.
Tenancy in Common
The law presumes the creation of a tenancy in common unless the conveyance document specifies otherwise. In this case the proportionate interests and right to possess the real property do not need to be equal, although each tenant has a right to possession.
The interest of a tenant in common will survive the death of the tenant and may also be conveyed by a tenant during their lifetime. The grantee or heir will then become a tenant in common with the surviving tenants in common.
