Breaking a joint tenancy deed

[wayne1935]

What is the name of your state? New York

My wife and her sister own a property as joint tenants from their deceased parents.

My wife would like to sell and her sister refuses to sell and the sister cannot afford to buy my wife out since this is a million dollar lake front vacation property. We might be able to buy the sister out but she refuses to sell to anyone. She wants to keep the property.

We're getting up in years; so in the short term we'd like to convert the joint tenancy deed to a tenants in common deed so that my wife could, at least, leave her interest to our children. Is there anything my wife can do, without her sisters approval?

I know my wife can go to court and seek a partition and we have considered that as a last option. Would a quitclaim deed by my wife work and how? Would she still need her sister's approval?

Wayne

[You Are Guilty]

Originally Posted by wayne1935

What is the name of your state? New York

My wife and her sister own a property as joint tenants from their deceased parents.

My wife would like to sell and her sister refuses to sell and the sister cannot afford to buy my wife out since this is a million dollar lake front vacation property. We might be able to buy the sister out but she refuses to sell to anyone. She wants to keep the property.

We're getting up in years; so in the short term we'd like to convert the joint tenancy deed to a tenants in common deed so that my wife could, at least, leave her interest to our children. Is there anything my wife can do, without her sisters approval?

I know my wife can go to court and seek a partition and we have considered that as a last option. Would a quitclaim deed by my wife work and how? Would she still need her sister's approval?

Wayne

Since your wife can only quitclaim her half interest, even if she does so, it means sister is still in the picture. I'm afraid partition is the only option here to accomplish your goals (absent some agreement amongst the owners, of course - which, perhaps unsurprisingly, happens fairly often once a partition suit is filed).

Good luck.

[wayne1935]

Originally Posted by You Are Guilty

Since your wife can only quitclaim her half interest, even if she does so, it means sister is still in the picture. I'm afraid partition is the only option here to accomplish your goals (absent some agreement amongst the owners, of course - which, perhaps unsurprisingly, happens fairly often once a partition suit is filed).

Good luck.

Thanx for the reply.

But just to clarify-we don't want to cut the sister out of the picture. Can my wife quitclaim her interest to me (or herself) and then the sister and whoever would be tenants in common or am I confused in what a quitclaim deed does?

There is a widely cited 1980 case in which a wife quitclaimed herself and left her interest in a property she owned jointly with her husband. She then was able to leave her interest to someone other than her husband but her husband did retain his interest in the property when the wife died.

Wayne

[FlyingRon]

Originally Posted by wayne1935

Thanx for the reply.

But just to clarify-we don't want to cut the sister out of the picture. Can my wife quitclaim her interest to me (or herself) and then the sister and whoever would be tenants in common or am I confused in what a quitclaim deed does?

Quit Claim only conveys the interest that she had. A joint interest is still a joint interest, she can quit claim that joint interest to you and you have a joint interest. The two parties can get together and deed the property to themselves in common.

I'm not sure why you think 50% of a common tennency is going to be any easier to dispose of.

[wayne1935]

Originally Posted by FlyingRon

Quit Claim only conveys the interest that she had. A joint interest is still a joint interest, she can quit claim that joint interest to you and you have a joint interest. The two parties can get together and deed the property to themselves in common.

I'm not sure why you think 50% of a common tennency is going to be any easier to dispose of.

FlyingRon,

I know a common tenancy won't be any easier to dispose of but it deals with immediate issue of inheritence. Selling is not an immediate concern.

We have tried to get my sister-in-law to change the joint tenant deed to a tenant in common deed but so far she is even refusing to do that. She is more comfortable gambling than we are because either she gets the whole property, and can leave the property to her daughter, if my wife passes away. If she dies and my wife gets the whole property she knows it will be sold and, although the daughter might get some money, the property will pass to new owners.

Wayne

[seniorjudge]

The GENERAL rule is that a quit claim deed from one joint tenant to someone else (or even the grantor) will extinguish a joint tenancy.

But check that out with a real estate lawyer before you do such a thing.

[wayne1935]

Originally Posted by seniorjudge

The GENERAL rule is that a quit claim deed from one joint tenant to someone else (or even the grantor) will extinguish a joint tenancy.

But check that out with a real estate lawyer before you do such a thing.

seniorjudge,

The impression I got from doing some internet searching was that a quitclaim deed would break a joint tenancy. We have talked to our lawyer about changing the deed and he has drawn up a new tenant in common deed but, as I mentioned, my sister-in-law is refusing to sign.

The case that is cited all over the internet in breaking a joint tenancy deed is: Riddle v. Harmon (162 Cal.Rptr. 530) from 1980. I can't seem to bring up the actual decision but since I have absolutely no legal training, I doubt if I could make heads or tails of the document. I did mention it to our lawyer but I didn't push the issue because I never imagined that my sister-in-law would not agree to a tenants in common deed. At any rate, he mentioned that the quitclaim deed was common in divorce cases but didn't indicate that it was an option for us.

Wayne

[seniorjudge]

I doubt (but do not know) that a California case would be controlling in New York.

Best to ask your lawyer.

[You Are Guilty]

Originally Posted by seniorjudge

I doubt (but do not know) that a California case would be controlling in New York.

Best to ask your lawyer.

It is not, but I stand corrected. There is a 1936 NY case that appears to permit the severance of a JT via quitclaim by one tenant to an outsider. I'd certainly recommend speaking to a estates or property lawyer to make sure there are no unintended consequences of doing so before filing a quitclaim.

(Also see RPL §240-c.)

[wayne1935]

Originally Posted by You Are Guilty

It is not, but I stand corrected. There is a 1936 NY case that appears to permit the severance of a JT via quitclaim by one tenant to an outsider. I'd certainly recommend speaking to a estates or property lawyer to make sure there are no unintended consequences of doing so before filing a quitclaim.

(Also see RPL §240-c.)

You Are Guilty,

Thanx for the info and it may come in handy. I assume RPL 240-c is another posting but I can't locate how one goes about pulling up postings. Is it permitted to cite the particular 1936 case you mentioned?

Wayne