NJSBA Family Law Section

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Robert Goldstein Esq.
Manalapan NJ
(732)972-1600
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Unless the Order contains a directive that the parties re-title the property before it is listed for sale, the Order requiring sale cannot change the manner in which they hold title.  You may want to suggest to the judge that the parties sign deeds for each of the properties transferring the properties to the same two parties but as tenants in common.  [Unless your client is 25 and healthy and the other is 85 and cancer-ridden!]

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Lisa M. Radell, Esq.
207 South Main Street
Cape May Court House, NJ 08210
Phone (609) 465-9910
Fax (609) 465-9920
E-Mail [email protected]
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Original Message:
Sent: 02-24-2015 17:25
From: Robert Goldstein
Subject: Effect of judgment for sale of properties in a partition case on form of ownership

I am on trial tomorrow in a partition case between non-married parties. The parties own 4 properties as joint tenants with rights of survivorship.

 

Neither party has the funds to purchase the other's interest in the properties and/or is unable to qualify to refinance the mortgages if they had the funds to buy out the other's share of the equity in some or all of the properties.

 

We expect, therefore, that the judge will order all of the properties sold and the proceeds divided, subject to any claims for credits.

 

My question is whether the order for sale would convert the way title is held from a joint tenancy with rights of survivorship to a tenancy in common?

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Robert Goldstein Esq.
Manalapan NJ
(732)972-1600
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Bob,



That is an interesting question.



If you take the concept of partition at face value, then the parties could, in theory continue to hold the parcels post-partition judgment not as undivided stakeholders, but as divided stakeholders. Literally, the court has the power to divide up the property so that each one could live on a "part" of each property (setting aside issues of zoning for a moment).



But as part and parcel of the partition action, isn't at least one of the parties saying "we have to defeat these undivided ½ shares by moving from joint tenancy with right of survivorship to tenants in common -- and then selling off all the interests"?



The partition judgment would put the properties up for sale. If one party died post-judgment but while those sales were pending, then why should the survivor get the benefit of full title by operation of law? Why should the decedent's heirs not get the benefit of the partition?



Even though the parties are not married, is this not akin to ending a tenancy by the entireties upon divorce? If the Deed for a divorced couple said "Robert and Matilda Goldstein, Married", would that prevent the decedent's heirs from arguing "tenancy by the entireties has been defeated by operation of law." In fact, joint tenancy is as close as unmarrieds can get to tenancy by the entireties.



In sum, if parties continue to hold title post-judgment, regardless of what the Deed says, then their interests at that point should be as tenants in common. Why? Because the partition action alone, like a divorce, destroyed the legal underpinnings of the connected title.



If anyone dies PRE-JUDGMENT, then my answer is different. Just as in divorce, it ain't over til the partition judgment says it's over, and the survivorship interest should be sustained.



You should ask a property lawyer. Those are the musings of a philosopher lawyer, and I could be so wrong.



Let us know what else you find out. . .



Hanan


Original Message------

I am on trial tomorrow in a partition case between non-married parties. The parties own 4 properties as joint tenants with rights of survivorship.

 

Neither party has the funds to purchase the other's interest in the properties and/or is unable to qualify to refinance the mortgages if they had the funds to buy out the other's share of the equity in some or all of the properties.

 

We expect, therefore, that the judge will order all of the properties sold and the proceeds divided, subject to any claims for credits.

 

My question is whether the order for sale would convert the way title is held from a joint tenancy with rights of survivorship to a tenancy in common?

------------------------------
Robert Goldstein Esq.
Manalapan NJ
(732)972-1600
------------------------------

I agree with Hanan. the whole purpose of a partition action is to divide the property is separate shares ie. tenants in common and removes the joint tenancy with rights of survivorship.

Alice M. Plastoris, Esq.
[email protected]<mailto:[email protected]>
(973) 538-7070
Sent from my iPad

THIS IS A CONFIDENTIAL ATTORNEY CLIENT PRIVILEGED COMMUNICATION.


Original Message------

Bob,



That is an interesting question.



If you take the concept of partition at face value, then the parties could, in theory continue to hold the parcels post-partition judgment not as undivided stakeholders, but as divided stakeholders. Literally, the court has the power to divide up the property so that each one could live on a "part" of each property (setting aside issues of zoning for a moment).



But as part and parcel of the partition action, isn't at least one of the parties saying "we have to defeat these undivided ½ shares by moving from joint tenancy with right of survivorship to tenants in common -- and then selling off all the interests"?



The partition judgment would put the properties up for sale. If one party died post-judgment but while those sales were pending, then why should the survivor get the benefit of full title by operation of law? Why should the decedent's heirs not get the benefit of the partition?



Even though the parties are not married, is this not akin to ending a tenancy by the entireties upon divorce? If the Deed for a divorced couple said "Robert and Matilda Goldstein, Married", would that prevent the decedent's heirs from arguing "tenancy by the entireties has been defeated by operation of law." In fact, joint tenancy is as close as unmarrieds can get to tenancy by the entireties.



In sum, if parties continue to hold title post-judgment, regardless of what the Deed says, then their interests at that point should be as tenants in common. Why? Because the partition action alone, like a divorce, destroyed the legal underpinnings of the connected title.



If anyone dies PRE-JUDGMENT, then my answer is different. Just as in divorce, it ain't over til the partition judgment says it's over, and the survivorship interest should be sustained.



You should ask a property lawyer. Those are the musings of a philosopher lawyer, and I could be so wrong.



Let us know what else you find out. . .



Hanan

</mailto:[email protected]>

While it is not clear whether a joint tenancy with rights of survivorship "terminates" upon partition into a tenancy in common, I found a case that says married parties' tenancy by the entireties automatically terminates upon divorce, thereby conferring tenancy in common status between them:



"Since an absolute divorce terminates the marital relationship, it converts an estate by the entirety into a tenancy in common." Sbarbaro v. Sbarbaro, 88 N.J.Eq. 101, 102 A. 256 (Ch.1917) <https: a.next.westlaw.com/link/document/fulltext?findtype="Y&serNum=1917005796&pubNum=161&originatingDoc=I0e6e2e5633fb11d98b61a35269fc5f88&refType=RP&originationContext=document&transitionType=DocumentItem&contextData=(sc.DocLink)"> .



Most of the cases in this area of the law deal with creditors who seek to step into the shoes of the debtor, one of the married people, and who then try to drive those people out, or charge rent for the debtor's share, etc.



There is an answer, I just don't have the time to find it.



Hanan


Original Message------

I agree with Hanan. the whole purpose of a partition action is to divide the property is separate shares ie. tenants in common and removes the joint tenancy with rights of survivorship.

Alice M. Plastoris, Esq.
[email protected]<mailto:[email protected]>
(973) 538-7070
Sent from my iPad

THIS IS A CONFIDENTIAL ATTORNEY CLIENT PRIVILEGED COMMUNICATION.

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