In this decision the RRC made use of state laws of ownership to establish a life estate interest where the Regional Supplement does not cover this situation. Under Mississippi law a person living on the property does not have to be a prior owner or purchaser of the property to establish a life estate interest which are the sole criteria mentioned in the Atlanta Regional Supplement. The RRC goes to state law which cites the requirement that some written evidence of granting a life estate has to be established if the life estate is to exceed one year. The RRC cites the written evidence as the statements of the nephew who is heir to the property and the statements of the SSI recipient living on the property given to SSA as satisfying this state requirement.

QUESTION

To determine resources and Supplemental Security Income (SSI) eligibility for a number holder in Mississippi, you asked whether the number holder has an ownership interest in the home in which she resides.

BACKGROUND

To determine resources and Supplemental Security Income (SSI) eligibility for a number holder in Mississippi, you asked whether the number holder has an ownership interest in the home in which she resides.

OPINION

The number holder has a life estate in the property conveyed to her by her sister’s children, because there is substantial evidence the children intended to convey a life estate to the number holder and the parties signed and delivered a writing that evidences the conveyance of the life estate.

DISCUSSION

SSI is a general public assistance program for aged, blind, or disabled individuals who meet certain income and resource restrictions and other eligibility requirements. See Social Security Act (Act) §§ 1602, 1611(a); 20 C.F.R. §§ 416.110, 416.202 (2011). “Resources” include cash or other liquid assets or any real or personal property that an individual owns and could convert to cash and use for her support and maintenance. See Act § 1613; 20 C.F.R. § 416.1201(a) (2011). “Resources” generally exclude an individual’s home. See Act § 1613(a)(1); 20 C.F.R. §§ 416.1210(a), 416.1212(b) (2011); Program Operations Manual System (POMS) SI 01110.210(B); POMS SI 01130.100(B). For the home exclusion to apply, however, the individual must have an ownership interest in the property. See 20 C.F.R. § 416.1212(a); POMS SI 01130.100(A)(1).

An individual may have an ownership interest in a property if he or she has a life estate or equitable ownership in the property. See POMS SI 01110.500(B)(3). A life estate conveys ownership of limited duration. See POMS SI 01110.500(B)(3)(a); POMS SI 01110.515(A)(2)(a), (B)(1); POMS SI 01140.110(A)(6). A life estate is a form of legal ownership usually created through a legal document. See POMS SI 01110.515(A)(2)(a); POMS SI ATL01110.516(A). An individual with a life estate can sell only his or her interest, and a life estate in home property generally is an excluded resource. See POMS SI 01110.515(B)(1); POMS SI 01140.110(A)(6).

Equitable ownership may occur when an individual does not have legal title to the property. See POMS SI 01110.500(B)(3)(b); POMS 01110.515(A)(2)(b). An individual may acquire an equitable ownership interest in his or her home through personal considerations or by performing certain activities such as making improvements to a shelter. See POMS 01110.515(C)(3). Generally, a court determines whether an individual has an equitable ownership interest, but under certain circumstances, an SSA adjudicator may determine the existence of an equitable ownership interest. See POMS SI 01110.515(C). If an individual alleges equitable ownership in a property (i.e., an unwritten ownership interest or right of use for life), an SSA adjudicator should follow applicable regional instructions, if available. See POMS SI 01130.100(C)(4).

NH alleged in her statement that her sister’s heirs had given her an “unwritten ownership interest and right of use of [the home] for the remainder of [her] life.” NH’s nephew also stated he and his siblings agreed to allow NH to live in the home “as if it were her own home for the remainder of her life.” These statements by NH and NH's nephew suggest they believe NH has an equitable ownership interest in the home. See POMS SI 01130.100(C)(4). The Atlanta Region has regional instructions for determining if an individual has an “equitable life estate” in home property. See POMS SI ATL01110.516. The instructions provide two situations under which a district or branch office may decide an equitable life estate exists, but NH’s situation does not fit the criteria in the POMS because NH did not own or purchase the home. See POMS SI ATL01110.516(B).

We look, then, to state law to determine whether NH had an equitable or other ownership interest in the home. See POMS SI 01110.500(C). Because NH is a resident of Mississippi and the home is located in Mississippi, we look to Mississippi law to determine NH’s ownership interest in the home.

Mississippi law provides guidance on the types of ownership interests an individual may have in real property as well as the requirements for transferring real property. Mississippi recognizes life tenancy as a form of real property ownership. See Twin States Land & Timber Co. v. Chapman, 750 So. 2d 567, 570 (Miss. Ct. App. 1999). The life tenant “holds the exclusive right to the use, possession, and enjoyment of the property during the term of the tenancy.” Id. (citing Wright v. Sullivan, 42 So. 2d 185, 187 (Miss. 1949)); see also Miss. Code Ann. § 89-1-9 (West 2011) (describing creation of life estate). Limitations on the life estate do not preclude the creation of a life estate. See, e.g., Chapman v. Thornhill, 802 So. 2d 149, 156 (Miss. App. 2001) (life tenant’s right of enjoyment of property did not include the right to harvest timber); Wolfe v. Estate of W~, 756 So. 2d 788, 792-93 (Miss. App. 1999) (noting that will left life estate to wife and allowed her to lease the property and sell it in public or private sale, but she was not allowed to gift the property).

There is no legal document here that actually conveys any ownership interest to NH, but there is a document that evidences the conveyance and the circumstances surrounding the conveyance provides substantial evidence to support the actual conveyance of a life estate to NH. See Davis v. Smith, 922 So. 2d 814, 819 (Miss. App. 2005) (substantial evidence supported reforming deed to include life estate to seller). The circumstances providing substantial evidence of a conveyance of a life estate to NH, include the statements from the nephew, on behalf of his co-heirs, and NH asserting the existence of a life estate for NH. The information shows that only NH is living at the address. NH’s investments in improvements to the home also support her claim of an ownership interest. Even if the nephew’s written statement submitted to SSA had contained limitations, such as prohibiting NH from selling her interest, such limitations would not alone detract from the evidence supporting the creation of a life estate. Therefore, substantial evidence supports the conveyance of a life estate by the nephew, on behalf of his co-heirs, to NH in the 406 Northwest home.

Under Mississippi law, any conveyance of land for a term of more than one year must be declared by writing signed and delivered. See Miss. Code Ann. § 89-1-3 (West 2011). The statute of frauds in Mississippi also requires that in order to enforce a contract for the sale of land, the contract must be in writing. See Miss. Code Ann. § 15-3-1 (West 2011); see Harvey v. Daniels, 96 So. 746 (Miss. 1926) (a contract for the sale of land, though within statute of frauds and unenforceable, is not void). Thus, in Mississippi for NH’s ownership interest in the life estate to be valid, there must be a writing evidencing the conveyance of the life estate. From the information provided, the only writings are the statements given by NH and the nephew to SSA. The question then is whether these writings satisfy the statute of frauds.

Nothing in the statute of frauds requires a written contract itself for the sale of an interest in land. Rather, it only requires that some writing exist to show the existence of the contract. The statute of frauds states that an “action shall not be brought whereby to charge a defendant or other party [on a contract for the sale of land] unless . . . the promise or agreement upon which such action may be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith . . .” Miss. Code Ann. § 15-3-1. “The statute is satisfied so long as there is ‘some memorandum or note thereof.’ For the prevention of fraud, the statute merely prescribes the form a part of the evidence must take.” Putt v. City of Corinth, 579 So. 2d 534, 538 (Miss. 1991) (minutes of the city utility commission meeting authorizing contract for purchase of property were “memorandum or note” satisfying statute of frauds).

The writing must also be signed and include a description of the property. A description of the property by name and physical address constitutes a description with reasonable certainty. See Theobald v. Nosser, 752 So. 2d 1036, 1040 (Miss. 1999); Frostad v. Kitchens, 377 F.2d 475, 478 (5th Cir. 1967) (a contract for sale of land must describe the land with reasonable certainty). To satisfy the signature requirement of the statute of frauds, the courts look to the intent of the parties. The signature can take many forms and be anywhere in the document. See T~, 752 So. 2d at 1040.

Mississippi also requires the writing signed for the sale of land be delivered either to the grantee or a third party (but recording is not required). See Miss. Code Ann. § 89-1-3; see also In re Estate of H~, 910 So.2d 1052, 1054-55 (Miss. 2005) (citing treatise that defines delivery as transfer of the writing from the grantor to the grantee or a third person, in such a manner as to deprive the grantor of the right to recall it as his option, and with intent to convey title); Stennis v. Stennis, 218 So.2d 716, 718 (Miss. 1969). Manual delivery of the deed to the grantee is not required, however. Delivery may be constructive as well as actual and delivery is sufficient if it is apparent from either the words or actions of the grantor that the grantor intended to treat the deed as having been delivered. See Frederic v. Merchants & Marine Bank, 28 So. 2d 843 (Miss. 1947).

The writings in this case appear to satisfy the requirements of the statute of frauds under Mississippi law. Although the statements provided to SSA are not an official contract, the statements would qualify as a “memorandum or note thereof.” The statements evidence an agreement to transfer an ownership interest in the property to NH. NH and her nephew describe the property by the street address, 406 Northwest St., Carthage, Mississippi, and indicate that it is the home on that property. This name and physical address of the property are sufficient under Mississippi law to describe the property interest with reasonable certainty. Both NH and her nephew also signed their statements. Further, NH's nephew delivered his statement to SSA. Thus, the requirements under Mississippi law for the transfer of an ownership interest in the home have been satisfied.

The improvements NH made to the home are not relevant in the analysis of whether the transfer of an ownership interest in the home falls under the statute of frauds. Under Mississippi law, neither part performance of an oral contract with respect to the sale of land nor the expenditure of money in reliance upon the oral contract are sufficient to take the contract out of the statute of frauds. See Brown v. Gravlee Lumbar Co., 341 So. 2d 907, 912 (Miss. 1977). Thus, NH’s improvements on the property would be insufficient alone to validate the contract and remove the transfer of an ownership interest from the statute of frauds.

Here, there is substantial evidence that the heirs, through the nephew, intended to transfer a life estate to NH and the transfer of the life estate would not be void merely because the contract itself for the transfer of the ownership interest in the home was not in writing. A writing evidencing the transfer of the life estate exists and is sufficient to meet the requirements of the statute of frauds. Thus, the statements from NH and her nephew are sufficient evidence to establish that NH has a life estate in the home.

CONCLUSION

For the reasons discussed above, we conclude that NH has a life estate in the property at 406 Northwest Street.

Mary Ann S~

Regional Chief Counsel

Kristin M. T~

Assistant Regional Counsel

The issue is whether a deed conveying property to a husband and wife as joint tenants with right of survivorship automatically creates a tenancy in the entirety. Also, if the husband and wife are joint tenants (and not tenants in the entirety), would each person need the other's consent in order to convey his or her property interest.

An estate in joint tenancy is one held by two or more persons jointly with equal rights to share in its enjoyment during their lives, and having the right of survivorship. It is terminated by any act which is inconsistent with its continued existence. In contrast, a tenancy in the entirety is one in which a husband and wife hold property as a single entity, by reason of their legal unity, and take as a single person with the right of survivorship. There can be no severance of a tenancy in the entirety by the unilateral action of either spouse.

Mississippi Code Ann. § 89-1-7 (2004) provides that all conveyances or devices to two or more persons, including conveyances or devices to husband and wife, shall be construed to create estates in common and not in joint tenancy or entirety, unless it manifestly appears from the tenor of the instrument that it was intended to create an estate in joint tenancy or entirety with the right of survivorship.

In this specific case, the individual has two warranty deeds each conveying parcels of Mississippi real property to her and her husband. One deed specifies the conveyance is to the parties “not as tenants in common, but as joint tenants with rights of survivorship” and the other specifies the conveyance is to the parties “as joint tenants with the right of survivorship and not as tenants in common, but to the survivor.” Thus, both deeds conveyed property to the husband and wife as joint tenants with right of survivorship. The deeds did not automatically create a tenancy in the entirety. A joint tenant does not need the consent of the other joint tenant to convey his or her property interest.

You asked whether, under Mississippi law, a deed conveying property to a husband and wife as joint tenants with right of survivorship automatically creates a tenancy in the entirety. Also, you asked whether, if the husband and wife are joint tenants and not tenants in the entirety, each would need the other's consent in order to convey his or her property interest. We reviewed the two deeds you submitted with your inquiry and have determined that both deeds conveyed property to the husband and wife as joint tenants with right of survivorship, that the deeds did not automatically create a tenancy in the entirety, and that a joint tenant does not need the consent of the other joint tenant to convey his or her property interest.

The facts presented are that Lydia L~ is a Supplemental Security Income (SSI) claimant. She is separated from her ineligible spouse. Ms. L~ has submitted two warranty deeds each conveying parcels of Mississippi real property to her and her husband, Carl L~. One deed specifies the conveyance is to the parties “not as tenants in common, but as joint tenants with rights of survivorship” and the other specifies the conveyance is to the parties “as joint tenants with right of survivorship and not as tenants in common, but to the survivor.”

As a general matter, an estate in joint tenancy is one held by two or more persons jointly with equal rights to share in its enjoyment during their lives and having as its distinguishing feature the right of survivorship. 20 Am. Jur. 2d Cotenancy and Joint Ownership § 3. It is terminated by any act which is inconsistent with its continued existence. Id. § 21. In contrast, a tenancy in the entirety is one in which a husband and wife hold property as a single entity, by reason of their legal unity, and take as a single person with the right of survivorship. 41 Am. Jur. 2d Husband and Wife § 28. There can be no severance of a tenancy in the entirety by the unilateral action of either spouse. Estate of C~ v. Long, 588 So. 2d 192, 196 (Miss. 1991).

The joint estate is not favored in the United States. Most states, including Mississippi, have modified, limited, or abolished by statute the common law rule that a conveyance to two or more persons is deemed to create a joint tenancy with survivorship unless contrary intent appears. 20 Am. Jur. 2d Cotenancy and Joint Ownership § 14. Miss. Code Ann. § 89-1-7 (2004) provides that “[a]ll conveyances or devises of land made to two (2) or more persons, including conveyances or devises to husband and wife, shall be construed to create estates in common and not in joint tenancy or entirety, unless it manifestly appears from the tenor of the instrument that it was intended to create an estate in joint tenancy or entirety with the right of survivorship.” In Ayers v. Petro, 417 So. 2d 912, 916 (Miss. 1982), the Court considered a deed conveying property to a husband and wife, “as joint tenants, not as tenants in common, but with the right of survivorship in each upon the death of either,” and found the deed was specific in creating a joint tenancy, and not a tenancy in the entirety. See also Cuevas v. Cuevas, 191 So 2d. 843 (Miss. 1966) (A conveyance to husband and wife “as joint tenants in entirety and not as tenants in common, but as to the survivor, (emphasis added)” created an estate by entireties (tenancy in the entirety). It appears the plain language in each of the deeds submitted in this case shows the intent to create a joint tenancy with right of survivorship and not a tenancy in the entirety.

With respect to conveying a joint tenant's interest, generally speaking, a joint tenancy is terminated by any act which is inconsistent with its continued existence. The termination may be voluntary, by a conveyance or contract, or involuntary, as by operation of law. Whenever such severance takes place, the joint tenancy terminates, the right of survivorship is destroyed, and the interest severed from the others becomes a tenancy in common as regards the remaining joint tenants. 20 Am. Jur. 2d Cotenancy and Joint Ownership § 21. The act of one joint tenant in severing his interest in the property by alienation severs the joint tenancy to the extent that if there were but two tenants, the joint tenancy is terminated. Id. § 22. See Ayers v. Petro, 417 So. 2d at 914 (“a joint tenancy may be destroyed by one of the joint tenants conveying his undivided interest”).

It is our opinion that the specific language of the deeds submitted created joint tenancies with the right of survivorship and that Ms. L~ may convey her interests without the consent of the other party.

Very truly yours,

Mary Ann S~

Chief Counsel, Region IV

Simone D. P~

Assistant Regional Counsel