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Real Estate

James Sawyer
Attorney at Law
390 North Broadway | Suite 200 | Jericho, NY 11753 | 516-222-4567

What are the differences between some common forms of property ownership?

What is the difference between a cooperative and a condominium?

What is the purpose of “recording” a deed?

What tax advantage do I get by owning real property?

What is a quitclaim deed?

Since my spouse passed away, I want to re-title my house so I own it jointly with my adult children. Is this a good idea?

What is the “Closing”?





Q: What are the differences between some common forms of property ownership?

There are a variety of ways that one can hold title to property:

Sole Ownership: owned entirely by one person. Words in the deed such as "Bill, a single man" establish title as sole ownership.  

Tenants in Common: a form of co-ownership where property is owned by two or more persons at the same time. The proportionate interests and right to possess the property between the tenants in common need not be equal. Upon death the decedent's interest passes to his or her heirs named in the will who then become new tenants in common with the other tenants in common. Words in the deed such as "Bill, John and Mary as tenants in common" establish tenancy in common.

Joint Tenancy with Right of Survivorship: a form of co-ownership where property is owned by two or more persons at the same time in equal shares. Each joint owner has an undivided right to possess the whole property and a proportionate right of equal ownership interest. When one joint tenant dies his/her interest automatically passes on to the surviving joint tenant(s). Words in the deed such as "Bill and Mary, as joint tenants with right of survivorship" establish title in joint tenancy.  This form of ownership is not available in all states.

Tenancy by the Entirety: a special form of joint tenancy when the joint tenants are husband and wife.   Neither spouse can sell the property without the consent of the other. Words in the deed such as "Bill and Mary, husband and wife as tenancy in the entirety" establish title in tenancy by the entireties.  In New York if title is taken in the name of both spouses it is assumed that tenancy by the entirety has been designated. 

Trusts: While not technically a form of ownership, you may own real property through a Trust.  Upon your passing your interest may pass to successor trustees and/or beneficiaries designated in your Trust.
 

 

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Q: What is the difference between a cooperative and a condominium?

In a "condo" arrangement, you legally own a particular unit in a multiple unit structure of the building.  Under a typical arrangement, you have the right to use common areas such as hallways, elevators, gardens, swimming pools, and club house within that structure.  You pay monthly payment to an "association" for maintenance expenses for the common areas. The association is typically run like a corporation, with complaint and appeal processes to protect individual rights of owners and to provide a mechanism for resolving disputes within the community.
 
In a "co-op", the ownership structure is quite different: you do not own your own specific unit in the building, but own stock in the corporation that actually owns the building and all the apartments. You lease your apartment from the corporation according to a formula based on the unit’s size.  As a shareholder you have a say in electing the Board of Directors who manage the cooperative.

 

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Q: What is the purpose of “recording” a deed?

When you purchase real property you receive a written document called a deed which transfers the ownership of the property from the buyer to you as the purchaser.  The deed gives you formal title.  The transfer of interest in real property is not complete until the deed is delivered to you.  The deed should be recorded immediately with the county clerk in the county where the property is located.  By recording the deed you give notice to all future potential buyers or mortgagees of that property that you now have an ownership interest in that particular piece of real property.  Recording also tracks the chronological chain of ownership between a series of buyers and sellers. Before you purchase real property a search is conducted at the county clerk’s recording office to confirm that the seller (as well as all previous sellers) has (had) legal title to the property in question.  Title insurance companies typically perform this function to determine whether any defects occurred in prior conveyances and transfers.  If so, such defects may then be pointed out and excluded from their coverage or corrected.

 

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Q: What tax advantage do I get by owning real property?

Mortgage interest deduction: The major advantage to owning real property comes from the deductibility of the interest of a home mortgage or a home equity loan.  The deduction must be taken as an itemized deduction in Schedule A of your federal tax return.

Property tax deduction: real estate taxes paid to any state or local governments are also deductible on your federal return. Generally, the taxes are based on the assessed value of the real property.

Capital gains exemption: If you sell your residence, you may exclude up to $250,000 ($500,000 for married couples) from any realized capital gains.  In order to qualify, you must meet certain requirements: among other things, you must have lived in the home for at least two of the five years prior to the sale, and not have excluded gain from the sale of another home within two years prior to the sale.
 

 

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Q: What is a quitclaim deed?

A quitclaim deed transfers or "releases" to the person acquiring the property whatever present interest the grantor has in that property. Unlike a grant deed, a quitclaim deed carries with it no express or implied covenants or guarantees. Therefore, if the grantor has no interest in the property a quitclaim deed conveys nothing.

 

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Q: Since my spouse passed away, I want to re-title my house so I own it jointly with my adult children. Is this a good idea?

While sharing title to property may avoid probate after your death, naming "joint tenants" may have a number of adverse consequences. In effect, adding a joint tenant to your home deed means that you have now gifted a portion of that property to those named. And when you make gifts in excess of $13,000 in value within a calendar year to someone other than a spouse the IRS requires you to file a gift tax return and in some cases pay gift taxes. When gifting an interest in your home to anyone you are endangering your own financial security.  If your new co-owners have creditors or are involved in a divorce, your assets may be at risk.  Furthermore, such a transfer may jeopardize certain property tax and other exemptions you enjoy as a senior, veteran, or homesteader.
 
Al alternate idea may be to create a Living Trust and name your children as beneficiaries of the Trust after you die. This has the advantage of avoiding probate, yet gives you total control of your home prior to transferring ownership. You may also change beneficiaries and provide for the circumstance of a child predeceasing you.

 

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Q: What is the “Closing”?

The closing is a final meeting of all the parties involved in the real estate transaction.   Attorneys for buyer, seller and bank convene, with sellers and buyers signing and officially transfering title.  A representative of the title insurance company will also be present to facilitate the transfer of title. The title company is also responsible for recording the new deed.  The bank's representative is present to coordinate the mortgage financing.
 
Before arriving at the closing the buyer should visit the property to assure that everything is in working order. That means turning on the heat and air conditioning and checking for leaks and other problems. After the closing any problem is the buyer’s responsibility. The buyer should also have all the necessary paperwork and certified checks for the seller and for various closing costs. If the mortgage, title, homeowner’s insurance and other documents required are not completed and brought to the closing table the closing may be delayed.

 

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Attorney James Sawyer assists clients in Jericho New York as well as Mineola, Hempstead, West Hempstead, Williston Park, Carle Place, New Hyde Park, Franklin Square, Albertson, Uniondale, Floral Park, Elmont, Roslyn Heights, Rockville Centre, Westbury, Garden City, Valley Stream, Great Neck, Little Neck, Hicksville, Jericho, Wantagh, Bethpage and Port Washington in Nassau County.



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