Moving in Together Joint Ownership for Unmarried Couples

You’re unmarried, but you want to buy a co-op or condo together. What do you need to know? Will it be difficult winning the board over? How do you plan for possibilities you’d rather not consider, like breakup or death? The decisions you make today may have you thanking yourself–or wondering what were you thinking–somewhere down the line, whether or not you stay together "till death do you part."

Passing the Board

The U.S. Census Bureau reports that as of 1998, there were over four million unmarried couples living together–almost a 50 percent increase from a decade ago. With "living together" becoming more mainstream all the time, how friendly are co-op boards to unmarried couples–including same-sex couples? Legally speaking, in the State of New York they cannot discriminate on the basis of marital status; nor, in New York City, on the basis of gender orientation. And in terms of attitudes, Barbara Fox, president of Fox Residential Group, a real estate brokerage firm in Manhattan, says that it’s really not that sensitive a subject anymore. "It’s very common now for couples to live together. I remember when it wasn’t, and you never told a board that you were living together and not getting married, or didn’t have plans to get married. Today it’s completely different. There are same-sex couples moving into buildings as freely and as easily as heterosexual couples, and boards are very approving and accepting of it."

Fox recommends that cohabiting applicants bring two types of reference letters when applying for co-op membership. "It’s a good idea to get one or two from each individual’s life alone–the ‘I’ve known this person for 20 years’ kind of thing," she explains, "and then get two or three letters from people who know them as a couple. That to me is a good way to go. If it’s a really stuffy building, and you do think that you will be getting married, then it’s a good idea to say that, because boards always like to know that there’s a stable home life. But it’s not the end-all, be-all. I’ve sold a lot of apartments to young–and not young–couples that are just living together and sometimes they get married, and sometimes they continue to live together."

Fox points out that boards may actually perceive an advantage to having an unmarried couple move in as opposed to a single person. "It’s funny, boards would almost rather know both sides of a couple than have a single person move in and not know what other person they might end up with." Steven Ganfer, an attorney with the Manhattan law firm Schwarzfeld, Ganfer, & Shore, says that in the case where only one party in the unmarried couple is buying, normally the board will want to interview both. "A lot of boards will do that even if what you’re doing is putting down one of the persons as an occupant and not a purchaser. Keep in mind under the New York law these days if you didn’t list the other person and immediately after you moved in, the other person came in as a roommate, you would have the right to have that person reside with you. The roommates law permits you to have a roommate. There are some cases now which are trying to indicate that if you knew from the beginning and you didn’t tell the board about what you were going to do, then the board’s consent was fraudulently obtained, therefore they have the right to void the consent given to you."

Owning Together

There are two ways an unmarried couple can purchase property together: as "joint tenants with right of survivorship," or as "tenants in common." Oded Ben-Ami, a senior loan officer at Sterling National Mortgage in Great Neck, New York, as well as an attorney, explains that when two individuals own property as tenants with the right of survivorship, each owns 100 percent of the property (or, in the case of a cooperative apartment, the shares of the co-op) and should either individual die, the other one automatically becomes the sole owner. "It does not mean that each individual owns 50 percent of the property, but that each of them has the right to all of it at all times," he clarifies. In contrast, when individuals own property as tenants in common, each one owns a fractional share of the whole property. "The most common division of the property (or shares in a cooperative apartment) is 50/50, but it doesn’t have to be that way–it could be 60/40, 70/30 and so on."

As far as recommending a "best" way to own property, Ben-Ami says, "There’s no right way to do it. Every situation is different. It depends on nature of the relationship, on the desires of the owners as to what should happen to the property on the death of either party, who should get to live at the property, and other complexities." He explains that the benefits of being joint tenants with the right of survivorship is that neither of the owners can sell or give away their rights in the property without the consent of the other. The benefit of owning property as tenants in common is the opposite–that is, either owner can transfer, sell or bequest in a will his or her rights in the property without consent of the other. (With cooperative apartments, rights in the property means rights in the ownership, not necessarily the right to live in the apartment.)

"Pre-Non-Nup"

Common law marriage no longer exists in New York (or in most states, including New Jersey and Connecticut)–so whatever deal non-married people set up will stay the same as long as they don’t marry. And even as tenants in common, if you should decide to leave the relationship and want to cash in your shares, you will need the cooperation of your partner, either to buy you out or to agree to sell the apartment with you. (Your other choices, selling your shares to an outside party or bequeathing them, are either a hard sell or don’t bring you cash.) Obviously, that might not be the best of times to count on cooperation. That’s one reason a pre-nuptial (or as Fox says, "pre-non-nuptial") type of agreement can make your life far easier down the road, no matter what course your relationship takes.

Ganfer outlines a number of possible scenarios for planning the disposition of the property on death or breakup. Maybe one person put all the money up, and they are just going to have the other person live with them. They might want the apartment to go fully through their estate and not to the person who lived with them. Or they might agree that one person is bringing the money and one person is bringing the home (doing renovations and adding personal touches), and decide that it should go 50/50. "It’s more a personal decision than a legal decision," says Ganfer. You could say that if either party decides to leave, one party would have the right to buy the other party out. You can have an agreement which says that in the event that either party decides to leave, they have to go and sell the apartment on the market within so many days, and the money will be split as agreed. Arrangements can be made so that a surviving party can remain in the apartment for the rest of his or her life, after which the proceeds of the sale go to the beneficiaries of the party who paid for it. "I’ve seen a lot of transactions where there are older couples and they both have former spouses and independent children. They may take the apartment as tenants in common, or one of them will put up all of the money and say that all of the funds should go to that person’s children. There are no magic formulas–it’s more a function of need."

Personal possessions may also be included in the agreement. "To the extent that something has special meaning to you, like an antique piece that came from someone that’s important to you," says Ganfer, "there’s no reason you couldn’t specifically identify those pieces and include them as part of the agreement.

It’s Up to You

Ultimately, there are loads of options for those who want to cohabit and own property together. There’s a saying, "What your head doesn’t do, your feet will." In this case, it could be, "What your head doesn’t do, could come out of your pocketbook later." The clearer you are on what you want now and for the future, the better you can arrange your life with that special someone.

Ms. Goodman is a freelance writer living in Westchester.

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