Forms of ownership: severalty, co-ownership, and partition

Identify the owners before naming the estate

Ownership in severalty means ownership by one person or legal entity. The word does not mean several owners. Co-ownership means that multiple owners hold interests in the same property. Have an attorney resolve disputed title or partition rights.

New York's creation rules

Under Estates, Powers and Trusts Law § 6-2.2(a), a disposition to two or more persons creates a tenancy in common unless expressly declared to be a joint tenancy. Do not infer joint tenancy merely from two names on a deed.

The special rule for a disposition of real property to a husband and wife is tenancy by the entirety, unless expressly declared to be a joint tenancy or tenancy in common. Section 6-2.2(c) also covers a disposition on or after January 1, 1996, of cooperative apartment shares together with the appurtenant proprietary lease to a husband and wife.

If the recipients are not legally married to each other but are described in the disposition as husband and wife, spouses, husbands, or wives, § 6-2.2(d) creates a joint tenancy unless tenancy in common is expressly declared. This applies to real property and to the qualifying cooperative shares and lease. A description in the document does not make the recipients legally married.

Two further rules matter: a disposition to multiple persons as executors, trustees, or guardians creates joint tenancy; property passing by intestacy to multiple persons is taken as tenancy in common.

Partition: division or sale

Under New York Real Property Actions and Proceedings Law § 901(1), a joint tenant or tenant in common holding and in possession, with an estate of inheritance, for life, or for years, may maintain a partition action. A sale may be sought if division cannot be made without great prejudice to the owners. A request for partition does not itself establish that sale is appropriate. Under § 921, actual partition divides land into distinct parcels, considering quality and quantity relative to the parties' rights. Equal acreage is not necessarily a fair division. Section 917 permits willing parties' shares to be set off together without dividing those shares between them.

Heirs property receives special treatment

Section 993 applies special rules to qualifying heirs property: tenancy-in-common real property meeting the family-title, residential-or-agricultural-use, lack-of-binding-partition-agreement, and family-interest or residency requirements. In a partition action, the court determines whether the property qualifies. The process includes settlement discussions, valuation, and an opportunity for eligible co-tenants who did not request sale to buy the sale-requesting owners' interests. If interests remain to be partitioned, partition in kind is favored unless it would cause great manifest prejudice to the co-tenants as a group. The court weighs all relevant factors, including practical division, value, family attachment, use, and contributions; no single factor controls.