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Home > Underwriting > Title News > Fifteen Volume Four

SERIES: Fifteen VOLUME: Four DATED: April, 2000

~ DEED CONSTRUCTION IN PARTITION ACTION JOINT TENANTS WITH RIGHT OF SURVIVORSHIP ~

A recently decided Appellate Division case, Tedesco v. Tedesco, Appellate Division, Third Department (decided February 3, 2000) interpreted the rights of joint tenants with the right of survivorship in a partition action.

In May 1990 Mafalda and Frank Tedesco, Sr. conveyed title to their home in Albany County to themselves and their son and daughter-in-law, Frank A. Tedesco, Jr. and Donna L. Tedesco. The granting clause of the 1990 deed identified the grantees in the following manner:

"Frank A. Tedesco, Sr. and Mafalda Tedesco, husband and wife... and Frank A. Tedesco, Jr. and Donna L. Tedesco, husband and wife... all as joint tenants with right of survivorship...".

At the time of the May 1990 conveyance, the property conveyed was encumbered by a $35,000 first mortgage in favor of First Union Home Equity Corporation and the proceeds of that loan were used to add an in-law apartment to the property. In July 1993 the four owners took out an additional mortgage with First Union and Frank Tedesco Jr. and Donna Tedesco made all monthly mortgage payments on both mortgages.

In 1996, after the death of Frank A. Tedesco, Sr., Mafalda Tedesco had a falling out with her son and daughter-in-law and commenced litigation seeking a partition and judicial sale of the property and a constructive trust. First Union was named as a defendant in that litigation because of its interest in the property as mortgage holder. In its answer, First Union counterclaimed against the plaintiff, Mafalda Tedesco, asking that, if the partition was granted, First Union receive payment of all sums due under its mortgages including all principal and interest as well as its counsel fees in the action. The defendants, Frank A. Tedesco, Jr. and Donna L. Tedesco asserted a cross-claim against First Union alleging that the 1993 mortgage was issued subject to their right, title and interest in the property, that in the event of a court order to sell the property, the plaintiff, Mafalda Tedesco, be solely responsible for the satisfaction of the First Union Mortgage and that the amounts required for that satisfaction should be offset against any recovery awarded to Mafalda Tedesco.

When the defendants, Frank A. Tedesco, Jr. and Donna L. Tedesco moved for summary judgment and dismissal of the plaintiff's complaint, First Union cross moved for summary judgment declaring that Mafalda, Frank and Donna Tedesco's interests in the property were subject to First Union's first lien on the property and declaring that, in the event of a sale, the entire principal balance and accrued interest would be immediately due and payable. The trial court granted both defendants' motions which led to the plaintiff's appeal.

The Appellate Court agreed with the lower court's determination that dismissed the plaintiff's cause of action to impress a constructive trust because the evidence presented at the summary judgment motion failed to disclose any unfulfilled promise that induced the plaintiff and her late husband to grant and convey defendants Frank and Donna Tedesco an interest in the property. In fact the plaintiff acknowledged that the defendants had honored their oral agreement to both take care of her and her late husband and maintain the property up to the point of her dispute with them. It was only the plaintiff's unwillingness to have any further contact with her son and daughter-in-law that prevented their further performance under the agreement.

The Appellate Court determined that the granting clause of the May 1990 deed "did not create two tenancies by the entirety, each holding as joint tenant with the other, but rather created a joint tenancy among the four grantees... Otherwise, the use of the word 'all' in the deed's granting clause is rendered meaningless... We therefore agree with the Supreme Court's determination that the plaintiff does not hold the one half interest she claims. To the contrary, plaintiff and defendants each hold a one-third interest in the property."

The Appellate Court additionally held:

(1) that the plaintiff, Mafalda Tedesco as a joint tenant with the right of survivorship was entitled to a partition as a matter of right under Real Property Actions and Proceedings Law Section 901(1) ["A person holding and in possession of real property as joint tenant or tenant in common, in which he has an estate of inheritance, or for life, or for years, may maintain an action for the partition of the property, and for a sale if it appears that a partition cannot be made without great prejudice to the owners."];
(2) that because a partition action is equitable in nature, an accounting and adjustment of the rights of the parties is necessary to determine their proper share of the sale profits; and
(3) that First Union's mortgages constitute a valid first lien on the property of the plaintiff, Mafalda Tedesco and defendants, Frank A. Tedesco and Donna L. Tedesco, which must be satisfied out of the proceeds of the judicial partition sale.

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