Legal Insights: Challenging Tenancy by the Entirety Ownership in New York

This week we wanted to draw your attention to an interesting decision out of the Appellate Division, Second Department, which overturned a Lower Court’s Order and clarified that an allegation that a legally married couple were “living separate lives” was insufficient to sever a Tenancy by the Entirety ownership of Real Property. 
The relevant facts of, as well as a link to, the case are set forth below.

 “In 1988, the subject property was transferred by deed from a third party to the appellant, Andre Limogene, and Jeanne Limogene, "husband and wife." Jeanne Limogene died on January 29, 2013. Her will, dated January 23, 2012, provided, in pertinent part, that "[i]n the event that [the subject property] is held as tenants in common, I give, bequeath, and devise all my interest in the real property . . . to my daughter Sherlly Lacroix."  (citation omitted).

“On or about September 24, 2013, the appellant entered into a contract of sale to sell the subject property. Thereafter, the plaintiff, Sherlly Lacroix, commenced this action seeking, inter alia, a declaration that she is a 50% owner of the subject property. The appellant moved to dismiss the complaint insofar as asserted against him, vacate the notice of pendency, and, in effect, for a judgment declaring that the plaintiff is not a 50% owner of the subject property.”  (citations omitted) The Supreme Court denied the motion which gave rise to this appeal.

There was no question that the conveyance of the subject property to the appellant and Jeanne Limogene, as "husband and wife," created a Tenancy by the Entirety.  The Plaintiff/Respondent’s case rested on the argument that the Tenancy by the Entirety designation was severed, prior to her mother's death, based on the fact that her mother and the appellant "separated" and lived "separate lives," with the appellant only returning to the subject property "to sleep”. 

In rejecting this argument, the Appellate Division reaffirmed the statutory requirements for terminating a Tenancy by the Entirety while both spouses are alive as follows:

 “A Tenancy by the Entirety may be converted into a tenancy in common by certain definitive acts: a conveyance of the property in which both spouses join; a judicial decree of separation, annulment or divorce; or execution of a written instrument that satisfies the requirements of section 3-309 of the General Obligations Law, which permits division or partition of real property held in a tenancy by the entirety if clearly expressed in such an instrument"

You can view the case by clicking the link https://www.nycourts.gov/reporter/3dseries/2015/2015_07626.htm.