Real Estate Insider,Moshe Lazarus, Esq.

Dear Readers: Per my note in my previous columns, we are working to assist newly admitted attorneys (and recent law school graduates) with their efforts to secure employment. To this end, I will once again ask any attorneys (and recent graduates) currently looking for employment to forward their resumes, together with a brief description of the type of position they are looking for, to me (via e-mail, please). At the same time, I will ask attorneys and firms that are looking to hire an attorney to please contact me and let me know of positions that are available, and the criteria that candidates for these positions must satisfy. Of course, I will try to forward the resumes of appropriate candidates to those attorneys and firms with positions to fill.

Thanks again for your assistance with these efforts.

Dear Moshe:

My parents owned a co-op apartment in Flatbush. My father passed away a few months ago, and my mother decided that she wants to sell the apartment and move in with us. The apartment was in both of my parents' names, and I wanted to know what we would have to do in order to allow my mother to sell it. Thanks in advance for your help.

Answer:

First, please accept my condolences on your loss.

Second, I'd like to commend you for your foresight. Unfortunately, issues like the one you have raised are very often not noticed or addressed until the transaction is well underway, at which point they can cause a great deal of difficulty and complication for all of the parties involved.

That being said, allow me to address your question. In order to do so, I will first provide you (and our readers) with some pertinent background information, and will then address your situation specifically.

As a matter of law, a couple (and, more generally, any group of people) can hold title to real property in a number of ways. As you might imagine, the rights of the respective spouses (or owners) with respect to the property will depend to a large extent on the manner in which title is held.

Generally speaking, a couple can hold title to real property either as "tenants in common," "joint tenants" or "tenants by the entirety". There are a number of differences between these respective forms of concurrent ownership (including the manner in which they are created, the rights of the respective owners to terminate the concurrent ownership, and the implications of the form of ownership for creditors of one of the owners). However, due to the nature and limited scope of this column, I will limit myself to a discussion of the differences that will impact your situation.

In situations such as yours, the most important factor to be considered is whether or not the respective owners (in this case, your parents) enjoyed what is known as a "right of survivorship". A right of survivorship means that the rights of any of the owners to the property will expire upon their passing, such that the surviving owner (or owners) will hold title to the property free and clear of the rights of the deceased owner. Of course, if the owners do not enjoy a right of survivorship, the rights and interests of any owner to the property will, upon that owner's passing, become part of the estate of the deceased owner, and can be disposed of only in accordance with the terms and conditions governing that owner's estate.

Thus, if the manner in which your parents held title to the apartment afforded them a right of survivorship, your mother now owns the apartment outright, and would be entitled to dispose of it as she wishes. However, if your parents did not enjoy a right of survivorship, your father's interest in the apartment has become part of his estate and can be disposed of only in accordance with the terms and conditions governing the disposition of your father's estate.

Generally speaking, tenants-in-common do not enjoy a right of survivorship, while joint-tenants and tenants by the entirety, do. As such, in order to advise you appropriately, we must first determine the manner in which your parents held title to the apartment.

As a matter of law, the language set forth in the deed (or other instrument conveying title to the property) will determine the manner in which title is held by the respective owners. As such, if the stock certificate and proprietary lease issued to your parents in connection with their acquisition of the apartment indicate the manner in which they held title to the apartment, we can determine with certainty the form of concurrent ownership they enjoyed (and by extension, whether or not they held a right of survivorship).

In the absence of any explicit language regarding the manner in which the new owners will take title, the default law regarding co-op apartments is quite interesting. New York statute dictates that any conveyance of a co-op apartment to a married couple after January 1, 1996 will, absent explicit language to the contrary, create in that couple a tenancy-by-the entirety (which, as we discussed, does afford the respective spouses a right of survivorship). However, any conveyance of a co-op apartment unit to a couple prior to January 1, 1996 will have, absent any explicit language to the contrary, created a tenancy-in-common (which, as we discussed, does not afford the respective spouses a right of survivorship).

In conclusion, if the manner in which your parents held title to the apartment afforded them a right of survivorship, your mother will be absolutely entitled to convey the apartment as she wishes, and she should not experience any difficulty due to the rights your father held with respect to the apartment. However, if your parents did not enjoy a right of survivorship, your father's rights and interests in and to the unit have now become part of his estate, and can be conveyed (or otherwise disposed of) only in accordance with the terms and conditions governing the disposition of your father's estate.

I will conclude by wishing you much hatzlacha with your efforts in this regard, and all the best.

Disclaimer: The advice contained in this column is general in nature, and may vary greatly depending on the particulars of a given situation. For this reason, one should not act in reliance on the advice set forth in this column without first consulting with Mr. Lazarus or another attorney.

MOSHE LAZARUS, ESQ., is an attorney specializing in real estate law. His firm represents a broad assortment of clients throughout New York and New Jersey with respect to all real estate related legal matters, commercial and residential. Moshe can be reached by phone at (845) 371-5636 or by e-mail to www.mark@lazaruslawfirm.com. For more information, please visit www.lazaruslawfirm.com.

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Real Estate Insider , Moshe Lazarus, Esq.