103 A.D.3d 21
N.Y. App. Div.2012Background
- Plaintiff and Hassid owned subject property as joint tenants with right of survivorship.
- Plaintiff quitclaimed her entire interest to herself and Hassid, creating a joint tenancy before any mortgage.
- In 2006 Hassid received a $300,000 loan from Bank of America secured by a mortgage on the property.
- Mortgage was recorded; Hassid died in January 2009, after default declared by the bank.
- Plaintiff sued to declare the mortgage null and void, arguing the mortgage terminated upon Hassid’s death and survivorship transferred her half free of the mortgage.
- Bank argued Hassid’s unilateral mortgage severed the joint tenancy under Real Property Law § 240-c(1)(b) and the mortgage survived.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does a unilateral mortgage by one joint tenant sever a joint tenancy? | Plaintiff | Defendant | Mortgage does not sever joint tenancy; it is a lien. |
| Did Hassid's mortgage affect survivorship or transfer of title at death? | Plaintiff | Defendant | Survivorship remained; mortgage ceased to exist after death; plaintiff held full title. |
Key Cases Cited
- Goetz v Slobey, 76 AD3d 954 (N.Y. App. Div. 2010) (defines joint tenancy unities)
- People v Nogarr, 164 Cal App 2d 591 (Cal. App. 2d Dist. 1958) (mortgage as lien did not sever joint tenancy)
- Harms v Sprague, 105 Ill 2d 215 (Illinois 1985) (mortgage lien does not sever joint tenancy)
- American Natl. Bank & Trust Co. of Shawnee v McGinnis, 571 P.2d 1198 (Okla. 1977) (mortgage as lien; no severance)
- D.A.D., Inc. v Moring, 218 So.2d 451 (Fla. Dist. Ct. App. 1969) (mortgage by one joint tenant not severance)
- Home Trust Mercantile Bank v Staggs, 714 S.W.2d 792 (Mo. Ct. App. E.D. 1986) (mortgage as lien; unity preserved)
- Texas Am. Bank/Levelland v Morgan, 105 NM 416 (N.M. 1987) (mortgage lien does not sever unities)