Severalty in New York: What Single Property Ownership Means
Explore how owning property in severalty in New York affects legal responsibilities, protections, and future ownership flexibility.
Owning property in New York can take several legal forms, each with distinct consequences. One common approach is ownership in severalty, where a single individual or entity holds the complete title. While seemingly straightforward, this ownership type carries specific legal and practical effects important for property owners to understand.
This article examines what holding property solely in your name means under New York law and how it differs from shared ownership arrangements.
Key Requirements for Single Ownership
Holding title to real property in severalty in New York means ownership rests entirely with one individual or a single legal entity, like a corporation or LLC. The term “severalty” signifies that the owner’s interest is separate, or “severed,” from any other person’s claim. This stands in contrast to co-ownership forms, such as joint tenancy or tenancy in common, where multiple parties share interests in the same property.
To hold property this way, the owner needs the legal capacity to own real estate in New York. This generally requires being at least 18 years old and mentally competent. New York law permits both U.S. citizens and noncitizens to acquire, hold, and transfer real property.1Justia. New York Real Property Law § 10 – Capacity to Hold Real Property Legal entities properly formed or authorized to operate in the state also have this capacity.
Establishing ownership in severalty depends on how the title is transferred. The deed must grant the title solely to one recognized legal owner, without language creating co-ownership. This grants the owner exclusive rights to possess, control, use, and sell the property without needing anyone else’s consent.
Documentation and Recording
Clear documentation, primarily through a deed, is essential to establish ownership in severalty. A deed is the legal document transferring property ownership. For severalty ownership, the deed must name only one individual or entity as the recipient (grantee). New York law requires that such transfers be in writing and signed by the seller (grantor).2FindLaw. New York Real Property Law § 243 – Grant of Fee or Freehold While signing is key for validity between parties, the signature typically needs acknowledgment before a notary or similar official for the deed to be recorded. Acknowledgment confirms the signer’s identity and the signature’s authenticity.
Recording the deed is crucial for protecting the owner’s rights. This involves submitting the executed and acknowledged deed to the County Clerk’s office (or City Register in New York City) where the property sits. Recording provides public notice of the ownership transfer, helping prevent fraudulent claims and solidifying the owner’s position in the property’s history. According to state law, an unrecorded deed might be invalid against someone who later buys the same property in good faith, pays fair value, and records their deed first.3FindLaw. New York Real Property Law § 291 – Recording of Conveyances
Other documents and fees accompany the deed for recording. New York law mandates a Real Property Transfer Report (Form RP-5217, or RP-5217-NYC for the city) be filed with the deed. This form details the transfer for tax assessment purposes. Payment of the New York State Real Estate Transfer Tax (RETT) is usually required if the sale price exceeds $500, calculated at a base rate of $2.00 per $500 of consideration. An additional 1% “mansion tax” applies to residential property sales of $1 million or more.4NYS Department of Taxation and Finance. Publication 577: FAQs Regarding the Additional Tax on Transfers of Residential Real Property for $1 Million or More County Clerks also charge fees for the physical act of recording the documents. Some clerks may charge a small fee to mail a notice of the recording to the property owner.
Effects on Statutory Protections
Holding property in severalty affects how certain legal safeguards apply. A key protection is the homestead exemption under New York Civil Practice Law and Rules, which shields part of a primary residence’s value from judgment creditors.5Justia. New York Civil Practice Law and Rules § 5206 – Real Property Exempt From Application to the Satisfaction of Money Judgments For a sole owner, this exemption applies directly to their equity. The protected amount varies by county: as of early 2025, it was $179,950 in New York City, Long Island, and nearby suburbs; $149,975 in several mid-state counties; and $89,975 elsewhere, with amounts subject to change. This exemption doesn’t protect against mortgage foreclosure, non-payment of property taxes, or judgments related to the home’s purchase price.
Ownership in severalty also interacts with marital rights. Even if titled solely in one spouse’s name, property acquired during the marriage might be considered “marital property” subject to equitable distribution in a divorce, as outlined in the Domestic Relations Law. Courts view marriage as an economic partnership and divide marital assets fairly, considering various factors, regardless of how the title is held. Title in severalty doesn’t automatically make property acquired during the marriage “separate property.”
Upon the death of a sole owner, a surviving spouse has statutory rights. New York’s Estates, Powers and Trusts Law provides a “right of election,” allowing the surviving spouse to claim a share of the deceased’s estate—the greater of $50,000 or one-third of the net estate.6NYSenate.gov. New York Estates, Powers and Trusts Law § 5-1.1-A – Right of Election by Surviving Spouse This includes property held in severalty and ensures a spouse cannot be completely disinherited, potentially claiming against the solely titled property to satisfy their share.
Regarding creditors, property held in severalty is generally fully exposed to the owner’s individual debts, limited mainly by the homestead exemption. Unlike certain co-ownership forms (like tenancy by the entirety for married couples, which offers significant protection against one spouse’s debts), a creditor with a judgment against the sole owner can potentially force the property’s sale to satisfy the debt, following specific legal procedures.
Addressing Disputes or Claims
Even without co-owners, disputes involving property held in severalty can arise from external sources. Boundary disagreements with neighbors over fences, driveways, or landscaping are common. Resolution often starts with a professional land survey. If negotiations fail, legal action may be needed for a court to determine property lines.
Challenges to the owner’s title itself can occur, perhaps due to claims of a fraudulent prior transfer, a forged deed, or the previous owner’s lack of capacity. The primary legal remedy for such issues is a “quiet title” action under Article 15 of the Real Property Actions and Proceedings Law. This lawsuit asks a court to confirm the owner’s title validity and block conflicting claims.
Other disputes might involve encumbrances like easements (rights for others to use part of the property) or restrictive covenants (limits on property use). These often require interpreting legal documents or past usage patterns, potentially leading to court actions like seeking a declaratory judgment to clarify rights. Financial claims, particularly mechanic’s liens filed by unpaid contractors or suppliers under the Lien Law, can also create disputes. Owners can challenge improper liens, and mechanisms exist to remove liens while disputes are resolved, such as depositing funds with the court or posting a bond.
Claims challenging exclusive ownership can also arise through adverse possession, where someone occupying the property openly and continuously for 10 years under specific conditions might gain title, governed by Article 5 of the Real Property Actions and Proceedings Law. An owner facing such a claim must prove in court that the strict legal requirements were not met. Nuisance claims, where a neighbor alleges the owner’s property use unreasonably interferes with their enjoyment of their own land, are typically handled through common law tort actions. Unresolved real property disputes are generally heard in the New York State Supreme Court.
Changing Ownership Type
An individual holding property in severalty can change this ownership structure. This usually involves executing and recording a new deed where the current sole owner (grantor) transfers the property to a new ownership arrangement, such as adding co-owners or transferring to an entity.
A common change is creating co-ownership. Two primary forms are tenancy in common and joint tenancy. If a deed transfers property to multiple people without specifying the type, New York law presumes a tenancy in common, where each owner has a separate, inheritable share. To create a joint tenancy, characterized by the right of survivorship (where a deceased owner’s share automatically goes to the surviving owners), the deed must explicitly state this intent. New York law allows a sole owner to create a joint tenancy directly with another person without complex intermediate steps.
Alternatively, an owner might transfer the property to a legal entity like a trust or an LLC. Transferring to a trust involves deeding the property to the trustee, who manages it per the trust agreement for beneficiaries. Transferring to an LLC or corporation involves deeding it to the entity; the individual then owns an interest in the entity rather than the property directly.
Any change requires preparing and properly executing a new deed identifying the grantor and the new grantee(s) (e.g., individuals as co-owners, a trust, or an LLC). This new deed must then be recorded following standard state procedures, including filing necessary forms and paying applicable transfer taxes, to provide public notice and protect the new ownership structure. Changing ownership can have other consequences, such as potential gift tax implications if transferred below market value, or triggering a mortgage’s “due-on-sale” clause, though exceptions exist for certain transfers, like to specific trusts.
