|
| |
~ BROTHER AND SISTER CANNOT TAKE TITLE TO REAL PROPERTY AS TENANTS BY THE ENTIRETY ~
Estates, Powers and Trusts Law Section 6-2.2 provides as follows:
"§6-2.2 When estate is in common, in joint tenancy or by the entirety.
(a) A disposition of property to two or more persons creates in them a tenancy in common, unless expressly declared to be a joint tenancy.
(b) A disposition of real property to a husband and wife creates in them a tenancy by the entirety, unless expressly declared to be a joint tenancy or a tenancy in common.
(c) A disposition on or after January first, nineteen hundred ninety-six of the shares of stock of a cooperative apartment corporation allocated to an apartment or unit together with the appurtenant proprietary lease to a husband and wife creates in them a tenancy by the entirety, unless expressly declared to be a joint tenancy or a tenancy in the common.
(d) A disposition of real property, or a disposition on or after January first, nineteen hundred ninety-six of the shares of stock of a cooperative apartment corporation allocated to an apartment or unit together with the appurtenant proprietary lease, to persons who are not legally married to one another but who are described in the deposition as husband and wife creates in them a joint tenancy, unless expressly declared to be a tenancy in common.
(e) A disposition of property to two or more persons as executors, trustees or guardians creates in them a joint tenancy.
(f) Property passing in intestacy to two or more persons is taken by them as tenants in common."
A recently decided Appellate Division decision, Jackson v. Pichler (Appellate Division, First Department, decided November 15, 2005) has determined that a brother and sister cannot take title to real property as tenants by the entirety, were not joint tenants with the right of survivorship but rather were tenants in common. The Appellate Court's decision which upheld a lower court's determination that the brother and sister own the property in question as tenants in common with no right of survivorship is as follows:
"The subject property was conveyed to Harold Warren and Defendant Rosemarie Pichler by deed dated March 20, 1974, purportedly as tenants by the entirety. However, because Harold Warren and defendant are brother and sister, and not husband and wife, it was impossible for them to take title as tenants by the entirety. Thus, pursuant to EPTL 6-2.2(a), they took title as tenants in common, with no right of survivorship, no express declaration having been included in the deed that they were taking title as joint tenants. Defendant's reliance upon EPTL 6-2.2(d) is misplaced. While that provision provides that a disposition of real property to persons who are not married to one another but who are described in the disposition as husband and wife creates in them a joint tenancy, the 1974 deed does not describe Harold Warren and defendant as husband and wife . . .
We have considered defendant's remaining arguments and find them unavailing."
Back to Table of Contents
|
