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In general, a person cannot be removed from a deed without his or her consent and signature on a deed. Absent legal action with a court order, such as a foreclosure or a partition action, the only way an owner’s interest in real property can be transferred is by a properly executed, acknowledged and recorded deed conveying that owner’s interest to a new party. If two or more people own real property jointly as tenants in common, a co-owner is unable to remove the other co-owner by executing a new deed – a person can only convey what they own. A title company will search all transfers to certify the record owners and those with an interest in the property will be required to execute the deed to the purchaser.
To illustrate, if A and B own a property together as tenants in common, each owning a fifty percent interest and A executes a subsequent deed transferring the property to C without B joining the deed, A only conveyed what she had, a fifty percent interest to C. B remains the owner of the other fifty percent interest, and is now a co-owner with C.
In contrast, if property is owned as tenants by the entirety, customarily between spouses, then a co-owner cannot transfer his or her half without the consent of the other. In New York State, if a couple divorces, the joint ownership automatically becomes tenancy in common.
What if one co-owner wants to sell the property but the other co-owner or co-owners do not?
A common occurrence in the area of trusts and estates practice is when one co-owner wants to sell the property and the other does not. The typical scenario is where a parent dies and children inherit that parent’s real property. If one child who is now a co-owner refuses to sell or buy out the other siblings, the only option for the siblings is a partition action. In a partition action, the court will order the parties to sell to a third party, splitting the proceeds according to the parties’ interests. Unfortunately, this process is costly and takes time within the court system. If this scenario is a concern, it is best to speak with an experienced attorney who can properly draft the estate planning documents to avoid this situation.
Legal Assistance in Real Estate and Estate Planning
If you feel that someone unlawfully transferred your interest in real property by forging your signature or some other method, you should speak with an experienced real estate attorney to review your options. When fraud involves seniors who have become incapacitated, a guardianship and turnover proceeding is often the quickest way to address the transfer. Otherwise, a civil action to “quiet title” will need to be brought in the Supreme Court in the county where the property is located.
