An unmarried couple buys a condo together in Manhattan. Both their names are on the deed. For the next decade, one partner pays the mortgage while the other covers the substantial costs of renovations and upkeep. When they decide to part ways, the question that lands on my desk is always the same: “I paid for everything, but their name is on the deed. Who owns what?”
It’s one of the most common and fraught situations in property law. People assume that having their name on a deed automatically grants them a 50% stake. In New York, this is a dangerous assumption. The answer isn’t found in who paid which bill, but in the specific words used on the deed itself—words that dictate not just ownership percentages but what happens to the property when one owner dies.
The Default Rule: Tenancy in Common
When a deed grants property to two or more people who are not married to each other, New York law presumes they own it as “tenants in common.” This is the default arrangement unless the deed explicitly states otherwise.
What does this mean?
- Shares can be unequal. While the law presumes equal shares if the deed is silent, this presumption can be challenged. Co-owners can hold property in any proportion—60/40, 80/20, or any other split. A well-drafted deed will specify these percentages.
- There is no automatic inheritance. For estate planning, this is the critical point. As a tenant in common, your share of the property does not automatically pass to the other co-owner upon your death. Instead, your interest becomes part of your estate, to be distributed according to your will or, if you have no will, to your legal heirs.
I have seen this create heartbreaking outcomes. A brother and sister own a family home as tenants in common. The brother dies unexpectedly without a will. His share doesn’t go to his sister who lived in the home with him—it goes to his estranged children from a previous marriage. Suddenly, she co-owns her home with relatives she barely knows. This is not stewardship; it’s a preventable crisis.
The Intentional Choice: Joint Tenancy with Right of Survivorship
The alternative to tenancy in common is a “joint tenancy with right of survivorship” (JTWROS). This form of ownership must be created deliberately, using precise legal language on the deed. Vague wording won’t do—the document must clearly state the intent to create a joint tenancy.
Under New York Real Property Law § 240-c, a disposition of real property to two or more unmarried persons creates a tenancy in common unless the instrument expressly declares it to be a joint tenancy. That “expressly declares” part is where many DIY deeds fail.
A joint tenancy has two defining features:
- Equal Shares: Joint tenants must own equal shares of the property. You cannot have a 60/40 split in a joint tenancy.
- Right of Survivorship: When one joint tenant dies, their ownership interest is automatically extinguished, and the surviving joint tenant (or tenants) instantly becomes the full owner of the property. The property does not pass through the deceased’s estate and is not subject to the probate process in Surrogate’s Court.
For some, this is an effective estate planning tool. For others, it’s a trap. If you add a child to your deed as a joint tenant for convenience, you have just given them a present ownership interest in your home. Their creditors could potentially place a lien on the property. If you have a falling out, you cannot simply remove them from the deed—they are a co-owner.
A Special Case for Married Couples
New York has a third form of ownership available only to married couples: “tenancy by the entirety.” This is the presumed form of ownership when a married couple acquires property together, unless the deed specifies otherwise. It functions much like a joint tenancy, with an automatic right of survivorship. It also adds a powerful benefit: enhanced creditor protection. Generally, a creditor of just one spouse cannot force the sale of the home to satisfy that individual’s debt.
When a divorce occurs, the tenancy by the entirety is severed, and the former spouses typically become tenants in common, each with a 50% share, unless their settlement agreement dictates otherwise.
Clarifying Ownership Before a Crisis
Does your name on the deed mean you own half the house? It depends entirely on how the ownership is legally structured.
If you are a tenant in common, your share is what the deed says it is—or what you can prove your contribution was in a legal action to partition the property. If you are a joint tenant, your share is equal to the other owners, and it comes with a right of survivorship that supersedes any will you may have written.
Ambiguity is the enemy of a stable legacy. Misunderstanding these distinctions can lead to disputes between family members, business partners, and unmarried couples, often ending up in costly litigation. The prudent path is to be intentional from the start.
The first step is often the simplest: locate and read your deed. If the language is unclear or doesn’t reflect your original intentions for the property, it may be time for a discussion. At my firm, we often begin with a deed review to confirm how an asset is titled and analyze how that fits within a client’s broader estate plan.
