Severing Joint Tenancy
We wanted to take this opportunity to revisit the requirements for an individual to unilaterally sever an existing Joint Tenancy interest in Real Property. In the recent case Harmon v. Misholy, 2022 NY Slip Op 22102, decided April 8, 2022, posted at https://www.nycourts.gov/reporter/3dseries/2022/2022_22102.htm, the Respondent was a tenant under a certain lease that had been executed, via a POA, by one of the Joint Tenant owners on a parcel of real property in Suffolk County.
The Lease was executed without the knowledge of the other Joint Tenant but failed to include any specific language indicating the intent to sever the Joint Tenancy and was not recorded in the office of the Suffolk County Clerk prior to the death of the Joint Tenant that executed the Lease. In denying the Respondent’s petition to enforce the terms of the Lease against the surviving Joint Tenant, the Court focused on the terms of RPL § 240-C which, in relevant part states:
“1. In addition to any other means by which a joint tenancy with right of survivorship may be severed, a joint tenant may unilaterally sever a joint tenancy in real property without consent of any non-severing joint tenant or tenants by:
(a) Execution and delivery of a deed that conveys legal title to the severing joint tenant’s interest to a third person, whether or not pursuant to an agreement requiring the third person to reconvey legal title to the severing joint tenant; or
(b) Execution of a written instrument that evidences the intent to sever the joint tenancy, including a deed that names the severing tenant as the direct grantee of the severing tenant’s interest.
2. No severance of a joint tenancy pursuant to subdivision one of this section shall terminate the right of survivorship of any non-severing joint tenant or tenants as to the severing tenant’s interest unless the deed or written instrument effecting the severance is recorded, prior to the death of the severing tenant, in the county where the real property is located.”
This case highlights the importance of carefully complying with RPL§ 240-C if you have a client who wishes to unilaterally sever a Joint Tenancy as the consequences of failing to do so can create significant issues for both the Joint Tenants as well as any 3rd Parties (ie. Mortgagees, Tenants, etc.) that might have executed agreements with one of the Joint Tenants.
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