Residential real property includes houses, condominiums and cooperative apartments. “Co-ops” are technically not real property but for our purposes a Co-op can be the marital home and transferred in a divorce similarly to real property. Depending what type of property is being transferred will determine what documents need to be completed and filed with the appropriate authorities:
- Single or Multi-family home: A deed as well as state and/or city transfer tax forms must be completed, signed, notarized and recorded with the county clerk where the property is located;
- Cooperative apartment: Normally a new stock certificate will be issued in the buyer’s name(s), if not; the stock certificate and proprietary lease must be assigned by the grantor(s). Approval by the Co-op Board is usually required; and
- Condominium: Like a house, a deed as well as state and/or city transfer tax forms must be completed, signed, notarized and recorded with the county clerk where the property is located. The Condominium Board may have a right of first refusal which they will have to waive in order for the transfer to happen. Approval by the Condominium Board may also be required.
Whether the parties sell the marital home or transfer title to only one of them, in most instances, they must draft and record a new deed. The real estate attorney will need a copy of the present recorded deed to draft the new deed. If the parties do not have a copy of their present deed, one can be obtained from the county clerk for a nominal fee. A Co-op, on the other hand, is technically shares of stock in a cooperative corporation with an apartment unit associated with that stock, not the actual unit itself, so the seller or transferor will need the proprietary lease and the stock certificate. If there is a security loan in place on the stock, the original proprietary lease and stock certificate must be produced and surrendered by the Lender when the loan is paid off at the closing. If there is no loan, the owner should have their original proprietary lease and stock certificate and will need to deliver both at closing.
Property Interest after Divorce
When residential real property is transferred pursuant to separation and/or divorce, the property is NOT automatically and/or legally transferred even if you have signed an Agreement or a Court Order is in place that states title shall be transferred to one of the parties. When couples part ways and they have to transfer real property to one party or change the ownership interest pursuant to a divorce, you want to make sure the transfer is complete and documents are signed and recorded as soon as possible, preferably at the same time that the Agreement is signed and filed. This is important because, once divorced, their ownership interest changes and parties no longer own the property as tenants by the entirety. That is, the divorce eliminates the right of survivorship (“ROS”) between a married couple.
ROS means if one party passes away their interest in the property passes to the surviving owner by operation of law, not to the decedent’s heirs. So, after a Judgment of Divorce has been handed down, the ROS is eliminated and the interest in the real property passes to the heirs of the decedent not the other party who may have wanted to live in that house – no matter what the old deed says. I would also do a judgment and lien search before the conveyance is made since you will want to know what judgments or liens have attached to the marital residence during the marriage. Judgments against your spouse that attached to the property prior to the transfer will remain for a period of 10 years. You are essentially taking subject to those liens.
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Please keep in mind, Ms. Camlet can mediate the issues, draft and finalize the Settlement Agreement and divorce documents, and act as the real estate attorney for the transfer of the property. She can also provide clients with reputable referrals for experienced realtors, mortgage lenders, title agencies, appraisers and tax professionals.