What’s Yours Is Mine and What’s Mine Is Yours: Tenancy by the Entirety

Gray-haired couple in embrace illustrating article by Richard Klass Esq. about Tenancy by the Entirety

He owned his own house. When Harald married Florence a year later, he transferred title to the house from himself to “Harald and Florence, his wife.” By virtue of this language in the deed, ownership of the house was now held in a “ tenancy by the entirety ” (see, Estates, Powers & Trusts Law Section 6-2.2). After many years of marriage, Florence passed away, leaving Harald as the surviving spouse of the former tenancy by the entirety and sole owner of the house by operation of law. Subsequently, Harald transferred title to the house to his nieces.

Executor of Estate of Deceased Wife Sues

Florence’s executor brought a lawsuit against Harald and his two nieces to claim Florence’s share in the house as part of her estate. The executor demanded that the house be returned to Florence’s estate for disposition according to her Will. In response, Harald and his nieces filed motions to dismiss the lawsuit based upon documentary evidence.

Dismissal Based upon Documentary Evidence

Richard A. Klass, Esq., Your Court Street Lawyer, filed the motion to dismiss based upon documentary evidence. CPLR 3211(a)(1) provides that dismissal of a lawsuit is appropriate when the document itself resolves all factual issues as a matter of law. In order to be considered documentary evidence under CPLR 3211(a)(1), the evidence “must be unambiguous and of undisputed authenticity.” Rabos v. R&R Bagels & Bakery, Inc., 100 AD3d 849 [2012]; Fontanetta v. John Doe, 73 AD3d 78 [2010]. In considering such a motion, the court is to afford the complaint its most favorable intendment and the plaintiff’s allegations which are contrary to the documentary evidence are to be accepted. However, “a complaint containing factual claims that are flatly contradicted by documentary evidence should be dismissed.” See, Well v. Rambam, 300 AD2d 580 [2002].

Tenancy by the Entirety Deed

Quoting from an 1883 decision from the NYS Court of Appeals, a “ tenancy by the entirety ” is derived from the common law (“when land was conveyed to husband and wife, they did not take as tenants in common or as joint tenants but each became seized of the entirety, and upon the death of either the whole survived to the other.”) On the death of either spouse, the property’s title vested in the other spouse because the survivor is deemed the representative of the single ownership. Indeed, the surviving spouse receives the entire property interest free and clear of any debts, claims, liens or encumbrances against the deceased spouse. See, Cormack v. Burks, 150 AD3d 1198 [2017].

Longstanding New York State law holds that a grant of real property to a husband and wife creates a tenancy by the entirety “unless expressly declared to be a joint tenancy or tenancy in common.” See, Prario v. Novo, 168 Misc.2d 610 [Sup. Ct., Westchester Co. 1996]; In re Faeth’s Will, 200 Misc. 143 [Sur. Ct., Queens Co. 1951]; Estates, Powers & Trusts Law § 6-2.2(b). Courts have recognized that a tenancy by the entirety cannot be altered without the mutual consent of the spouses or divorce. In Sciacca v. Sciacca, 185 Misc.2d 105 [Sup. Ct. Queens Co. 2000], the court held that: “As articulated by the Court of Appeals in Kahn v. Kahn, 43 N.Y.2d 203, a court cannot direct the disposition of property held by married couples as tenants by the entirety until the court first alters the marital status, such as by entering a judgment of divorce or separation. Indeed, the law is long-settled that neither entirety tenant may, without the consent of the other, dispose of any part of the property to defeat the right of survivorship.”

That the executor was pursuing rights on behalf of Florence’s estate was irrelevant. Numerous cases have held that, regardless of any purported disposition of real property owned by spouses as tenants by the entirety, the surviving spouse takes the whole by operation of law. See, e.g. Levenson v Levenson, 229 AD 402 [2d Dept 1930] (“A question of property held jointly was not involved. Naturally, the survivor took that regardless of the will.”); In re Maguire’s Estate, 251 AD 337 [2d Dept 1937], affd sub nom, 277 NY 527 [1938] (“In an estate by the entirety the husband and wife are each seized of the entire estate, per tout et non per my. Each owns, not an undivided part, but the whole estate. ‘The survivor, upon the death of the other, does not take a new acquisition, but holds under the original grant or devise, the estate being merely freed from participation by the other.”)

At the time of Florence’s death, she and Harald were still married. There was also no evidence that they altered their tenancy by the entirety either by judicial decree (such as a divorce judgment) or written instrument satisfying General Obligations Law Section 3-309. Therefore, the Deed itself was dispositive of the issue of ownership of the house vesting solely into Harald as the surviving spouse.

Foreign Affidavit Properly Accepted by Court

In support of the motion to dismiss the lawsuit, Harald submitted his affidavit signed by him in Jamaica, his new home country. The executor took issue with the court accepting the affidavit without it having been executed before a Notary Public. In rejecting this argument, the court noted that Harald’s affidavit was signed in accordance with the rule set forth in CPLR 2106(b) (“The statement of any person, when that person is physically located outside the geographic boundaries of the United States, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States, subscribed and affirmed by that person to be true under the penalties of perjury, may be used in an action in lieu of and with the same force and effect as an affidavit. Such affirmation shall be in substantially the following form:

I affirm this … day of ……, …., under the penalties of perjury under the laws of New York, which may include a fine or imprisonment, that I am physically located outside the geographic boundaries of the United States, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States, that the foregoing is true, and I understand that this document may be filed in an action or proceeding in a court of law.”)

Based upon the above long-standing case law, the court determined that there was no valid cause of action against the defendants. In making that determination, the court cited to the rule that “the sole criterion is whether the pleading states a cause of action, and if from the four corners factual allegations are discerned which, taken together, manifest any cause of action cognizable at law, a motion to dismiss will fail… However, allegations constituting bare legal conclusions as well as factual claims flatly contradicted by documentary evidence are not entitled to any such considerations.”

copyr. 2018 Richard A. Klass
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Ownership of Property among Two Sets of Spouses

…the court held that a grant of real property to a husband and wife creates a tenancy by the entirety “unless expressly declared to be a joint tenancy or tenancy in common….”
“Rodriguez’s Right to 50% of the Property Was Created by Operation of Law”
In this case, the Deed to the subject real property indicated ownership of the property as follows: “GILBERTO HERNANDEZ and CONSOLACION HERNANDEZ, HIS WIFE … AND ERLINDA QUE and ELPIDIO RODRIGUEZ, HER HUSBAND.” As to the 50% interest in the property owned by movant  Elpidio Rodriguez and his wife, Erlinda Que, they owned their share as tenants by the entirety. Based upon the substantial case law in New York State, Mr. Rodriguez and Erlinda Que took ownership of their half-share as husband and wife, have continued as such until Erlinda Que’s death. In Prario v. Novo, 168 Misc.2d 610 (Sup. Ct., Westchester Co. 1996), the court held that a grant of real property to a husband and wife creates a tenancy by the entirety “unless expressly declared to be a joint tenancy or tenancy in common.”  Estates, Powers and Trusts Law Section 6-2.2(b). A joint tenancy is subject to partition during the lifetimes of the joint tenants (24 N.Y.Jur.2d, Cotenancy and Partition, Section 33; 3A Warren’s Weed, New York Real Property, Partition, Section 3.03; id., vol. 2A, Joint Tenants, Section 4.01) whereas a tenancy by the entirety cannot be divided absent consent of both spouses or upon a divorce (24 N.Y.Jur.2d, Cotenancy and Partition, §§ 38, 56; 3A Warren’s Weed, op. cit., Partition, Section 3.12). The tenancy by the entirety can be changed by voluntary act of the couple, divorce or death. In Goldman v. Goldman, 95 NY2d 120 (2000), the Court of Appeals noted that a tenancy by the entirety is a form of real property ownership available only to parties married at the time of the conveyance (Kahn v. Kahn, 43 N.Y.2d 203, 207, 401 N.Y.S.2d 47, 371 N.E.2d 809). As tenants by the entirety, both spouses enjoy an equal right to possession of and profits yielded by the property (Neilitz v. Neilitz, 307 N.Y. 882, 122 N.E.2d 924). Additionally, “each tenant may sell, mortgage or otherwise encumber his or her rights in the property, subject to the continuing rights of the other” (V.R.W., Inc. v. Klein, 68 N.Y.2d 560, 565, 510 N.Y.S.2d 848, 503 N.E.2d 496). Only if the legal relationship between the husband and wife is judicially altered through divorce, annulment or legal separation, does the tenancy by the entirety converts to a tenancy in common (Kahn v. Kahn, 43 N.Y.2d, supra, at 207, 401 N.Y.S.2d 47, 371 N.E.2d 809). Courts have recognized that a tenancy by the entirety cannot be altered without the mutual consent of the spouses or divorce. In Sciacca v. Sciacca, 185 Misc.2d 105 (Sup. Ct. Queens Co. 2000), the court held that: “As articulated by the Court of Appeals in Kahn v. Kahn, 43 N.Y.2d 203, 401 N.Y.S.2d 47, 371 N.E.2d 809, a court cannot direct the disposition of property held by married couples as tenants by the entirety until the court first alters the marital status, such as by entering a judgment of divorce or separation. Indeed, the law is long-settled that neither entirety tenant may, without the consent of the other, dispose of any part of the property to defeat the right of survivorship.” Citing to Hiles v. Fisher, 144 N.Y. 306, 39 N.E. 337.) The Court of Appeals held, in Hiles v. Fisher, 144 NY 306 (1895), that the husband had a right to mortgage his interest, which was a right to the use of an undivided half of the estate during the joint lives, and to the fee in case he survived his wife; and by the foreclosure and sale the plaintiff acquired this interest, and became a tenant, in common with the wife, of the premises, subject to her right of survivorship. Revisiting this issue, in V.R.W., Inc. v. Klein, 68 NY2d 560 (1986), the Court of Appeals held:
What makes this right of survivorship unique and differentiates it from the right of survivorship inherent in an ordinary joint tenancy is that it remains fixed and cannot be destroyed without the consent of both spouses (see, Kahn v. Kahn, 43 N.Y.2d 203, 401 N.Y.S.2d 47, 371 N.E.2d 809; compare, Matter of Polizzo, 308 N.Y. 517, 127 N.E.2d 316; Matter of Suter, 258 N.Y. 104, 179 N.E. 310, with Matter of Klatzl, supra, 216 N.Y. at pp. 86-87, 110 N.E. 181; Hiles v. Fisher, supra). As long as the marriage remains legally intact, both parties continue to be seized of the whole, and the death of one merely results in the defeasance of the deceased spouse’s coextensive interest in the property (see, Stelz v. Shreck, supra, 128 N.Y. at p. 266, 28 N.E. 510; Bertles v. Nunan, supra, at p. 156). Similarly, involuntary partition is not available to either cotenant as a means of severing the tenancy by the entirety, since a contrary rule would permit a vindictive or irresponsible spouse to deprive the other of the comforts of the marital home (see, Kahn v. Kahn, supra, 43 N.Y.2d at p. 208, 401 N.Y.S.2d 47, 371 N.E.2d 809; Anello v. Anello, 22 A.D.2d 694, 253 N.Y.S.2d 759; Vollaro v. Vollaro, 144 App.Div. 242, 129 N.Y.S. 43).
Accordingly, the ownership interests of Mr. Rodriguez and Erlinda Que as “husband and wife” created a tenancy by the entirety. Upon the death of his wife, Mr. Rodriguez became the owner of her share by operation of law; any Last Will and Testament of Erlinda Que would not alter his rights. Long-established New York law is that real property held as tenants by entirety does not pass under the Will of a decedent spouse. In re Rothko’s Estate, 77 Misc.2d 168 [Sur. Ct., NY Co. 1974]; In re Strong’s Will, 171 Misc. 445 [Sur. Ct., Monroe Co. 1939] (“A severance of a tenancy by the entirety cannot be effected by the unilateral last will of one of the spouses alone.” Citing to Levenson v. Levenson, 229 AD 402 [2 Dept. 1930]). On the death of the first tenant by the entirety of real property, his estate ceases to have any interest in such property. Matter of Harris’ Estate, 88 Misc.2d 60 [1976], affirmed 61 AD2d 881.
by Richard A. Klass, Esq.
———– copyr. 2012 Richard A. Klass, Esq. The firm’s website: www.CourtStreetLaw.com Richard A. Klass, Esq., maintains a law firm engaged in civil litigation at 16 Court Street, 28th Floor, Brooklyn Heights, New York. He may be reached at (718) COURT-ST or e-ml to RichKlass@courtstreetlaw.com with any questions. Prior results do not guarantee a similar outcome.

R. A. Klass Your Court Street Lawyer

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The (Property) Bonds of Matrimony That Can’t Be Broken

Painting by August Macke of a man and woman, from the side. The woman is dressed in white and largely obscures the man. They appear to be walking to the right.
Two sisters and their respective husbands decided to purchase a two-family house in The Bronx in 1995. At the closing, they took title to the property, reflected on the Deed, as follows: “Gilberto Hernandez and Consolacion Hernandez, his wife …. And Erlinda Que and Elpidio Rodriguez, her husband.” Erlinda executed her Last Will and Testament, in which she devised her “half share and interest in the real property” to her sister, Consolacion, and her husband, Elpidio, in equal shares. In December 2000, Erlinda passed away, survived by her husband, Elpidio. For a long time after Erlinda’s death, Elpidio and his deceased wife’s sister continued to maintain the house. At some point, he remarried and wanted to sell it and move. And, when they all couldn’t agree on how to accomplish this, a lawsuit was initiated called a “Partition and Sale” action. In this type of lawsuit, the parties ask a judge to order the property sold at auction. The decedent’s sister and her husband, along with the nominated executor under the Will, claimed that ownership of the Bronx property passed under Erlinda’s Last Will and Testament. Therefore, they claimed that half of Erlinda’s quarter-share went to Consolacion (or one-eighth of the total interest in the property), and half of Erlinda’s quarter-share went to Elpidio. By their claim, Elpidio would be entitled to only 37.5% of the house. Elpidio, the decedent’s surviving spouse, came to Richard A. Klass, Your Court Street Lawyer, for legal advice. Elpidio felt that, as Erlinda’s husband, he should get more.

Tenancy by the Entirety:

One of the “perks” of being married is that real property deeded to a husband and wife creates a “tenancy by the entirety,” under New York’s Estates Powers and Trusts Law Section 6-2.2(b). This form of ownership, among other things, prevents creditors of one spouse from forcing the sale of the house and easily transfers title to one spouse upon the death of the other. The exception to this rule about a tenancy by the entirety is if the Deed expressly declares it to be a joint tenancy or tenancy in common (where each spouse owns a divisible share). Commonly, the Deed to a husband and wife will indicate that they are married, with language such as “A and B, as husband and wife” or “A and B, his wife” or “A and B, her husband.” This form of ownership, by statute, cannot be altered or changed without the mutual consent of the spouses or a divorce. Obviously, the ownership of a house by spouses as a tenancy by the entirety gives comfort that one spouse cannot sell his/her interest in the house without the other spouse’s consent. Only in limited circumstances, such as a divorce proceeding or bankruptcy case, can a court force the disposition of a house owned by the spouses in this form without their consent.

Granting of Summary Judgment:

The term “summary judgment” means that the litigant believes that there are no issues of fact which necessitate a trial before a judge or jury. When one litigant “moves” or asks the judge to grant summary judgment, he must present proof (in admissible form) which supports the request and which demonstrates that the matter may be decided on the law alone. It can then be said that the movant has established his“prima facie” case (meaning “at first sight”). Then, the other side to the litigation must present the judge with proof that there are genuine factual issues, and that the matter cannot be decided without a trial. Many readers will understand that judges deny summary judgment motions in most cases because they want to give litigants their day in court, and the facts are not always the facts. In the probate proceeding in the Surrogate’s Court for Bronx County, Elpidio asked the Surrogate to grant him “summary judgment” on his claim that he is entitled to Erlinda’s entire interest in the house. The ‘Exhibit A’ proof, offered by Elpidio that he was entitled to Erlinda’s whole share, was the Deed itself. There was no express declaration in the Deed that it had been conveyed or transferred to Elpidio and Erlinda as anything other than husband and wife. In granting summary judgment to Elpidio, in In the Estate of Erlinda Que, Deceased [Surrogate’s Court, Bronx County, February 25, 2010], Surrogate Holzman determined that, despite the language of Erlinda’s Last Will and Testament granting her sister a half-share of her interest in the house, Elpidio should be declared the full owner of half or 50% of the whole house. Specifically, Surrogate Holzman held that:
“A tenancy by the entirety is different from both a tenancy in common and a joint tenancy in that ‘it remains fixed and cannot be destroyed without the consent of both parties’ for ‘as long as the marriage remains legally intact,’ with both parties continuing ‘to be seized of the whole, and the death of one merely results in the defeasance of the deceased spouse’s coextensive interest in the property.’ (V.R.W. Inc. v. Klein, 68 NY2d 560 [1986].)”
Accordingly, by operation of law, the death of Erlinda, one of the spouses, resulted in that spouse/tenant no longer having an interest in the property, with Elpidio, as the surviving spouse, now owning her share as well as his own. Surrogate Holzman recognized the long-standing rule that “a severance of a tenancy by the entirety cannot be effectuated by the unilateral last will of one of the spouses alone.” (Matter of Strong, 171 Misc. 445 [1939].
 
by Richard A. Klass, Esq.
Credits: Paar im Walde (1912). by artist August Macke (1887-1914). Photo of Richard Klass by Tom Urgo, 2008. Law firm business communications services provided by The Innovation Works, Inc. ———– copyr. 2010 and 2011 Richard A. Klass, Esq. The firm’s website: www.CourtStreetLaw.com Richard A. Klass, Esq., maintains a law firm engaged in civil litigation at 16 Court Street, 28th Floor, Brooklyn Heights, New York. He may be reached at (718) COURT-ST or e-ml to RichKlass@courtstreetlaw.com with any questions. Prior results do not guarantee a similar outcome.

R. A. Klass Your Court Street Lawyer

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