Takeaway
In short, this case holds that an attorney-drafted deed conveying property to spouses and their child "jointly and not as tenants in common" creates a three-way joint tenancy, and a Family Court stay-away order does not eliminate a titled cotenant's right to seek partition.
Joseph Kurpiel brought an action to partition real property in Huntington, Suffolk County. He had owned the property alone until June 1, 1955, when he conveyed it by deed to himself, his wife Jenny Kurpiel, and their son Edward Kurpiel, stating that they were to take "jointly and not as tenants in common."
Jenny and Edward denied that the deed created a joint tenancy. They also asserted that Joseph could not seek partition because a Suffolk County Family Court order directed him to stay away from Jenny and the family home. In addition, they argued that Joseph and Jenny held an undivided one-half interest as tenants by the entirety, which would prevent Joseph from partitioning that interest.
Joseph moved to dismiss the defenses and for summary judgment under CPLR 3211(b) and CPLR 3212. The defendants cross-moved for summary judgment. The Supreme Court granted Joseph's motions, denied the cross-motion, and held that all three grantees were joint tenants with present one-third interests.
Issue #1
Whether the Family Court order requiring Joseph to stay away from the family home deprived him of the possession necessary to maintain a partition action.
Holding
No. The order did not bar Joseph from maintaining partition.
Reasoning
The Family Court's November 17, 1965 order required Joseph to stay away from Jenny and the family home, but it did not award Jenny exclusive possessory rights or decide ownership of the property. The Family Court neither had the ownership issue before it nor purported to resolve that issue.
Even if Jenny and Edward were the parties in actual possession, Joseph's record title gave him a legal right to possession as a cotenant. That constructive right to possession was sufficient to permit him to bring an action for partition.
Issue #2
Whether the 1955 deed created a joint tenancy among Joseph, Jenny, and Edward, rather than a tenancy by the entirety between Joseph and Jenny in an undivided one-half interest.
Holding
Yes. The deed created a joint tenancy, giving each grantee a present one-third interest.
Reasoning
Although New York law generally presumes a tenancy in common, the deed expressly conveyed the property to the three named grantees "jointly and not as tenants in common." Because an attorney prepared the deed, the court treated that language as a deliberate use of technical words sufficient to overcome the statutory presumption.
The authorities cited by the defendants did not compel a different result. In those cases, courts declined to give technical effect to the word "jointly" in wills drafted by laypersons, where the wording did not reliably show an intent to create a joint tenancy. Here, by contrast, the attorney-drafted deed plainly expressed the grantor's intent that the three grantees take jointly rather than as tenants in common.
The court found the deed materially analogous to Jooss v. Fey, which held that a conveyance to grantees "as joint tenants and not as tenants in common" excluded a tenancy by the entirety. Replacing "as joint tenants" with "jointly" did not make the grantor's intent less clear in this deed.
Matter of Buttonow was distinguishable because it involved a differently worded deed from a third party to a husband and wife, a setting that carried a presumption of tenancy by the entirety. That presumption was not controlling where Joseph conveyed the property to himself, his wife, and their son, and the deed expressly specified joint ownership.
Issue #3
Whether an asserted tenancy by the entirety between Joseph and Jenny would defeat Joseph's partition claim.
Holding
No. Even under the defendants' proposed ownership arrangement, partition would remain available; but the court rejected that arrangement because the deed created a three-way joint tenancy.
Reasoning
The court explained that if the deed had omitted the words showing an intent to create joint ownership, Joseph and Jenny could have held one-half as tenants by the entirety while Edward held the other half as a tenant in common. Even in that circumstance, however, a partition action could proceed because the marital unit would hold only a partial interest alongside Edward.
Because the deed expressly created a joint tenancy, the court did not need to rely on that alternative ground. It held instead that Joseph, Jenny, and Edward each held a present one-third interest, leaving no tenancy by the entirety that could support the defendants' defense.