This Regional Chief Counsel (RCC) opinion examines whether an individual (Person A) holds an equitable interest in property owned by another individual (Person B) that would allow the agency to apply the undue hardship exclusion described in Program Operations Manual System (POMS) SI 01130.130 in determining resources for Supplemental Security Income (SSI) purposes. The RCC explains that, in order for the undue hardship exclusion to apply, Person A must have an equitable interest in the property that creates joint tenancy ownership with Person B. The RCC concludes that since the individuals failed to prove joint tenancy ownership under New York law, the agency cannot apply the undue hardship exclusion. The property counts as a resource for SSI purposes.

QUESTION

You asked whether the applicant’s uncle holds an equitable interest in property owned by the applicant’s father that would allow the agency to apply the undue hardship exclusion described in Program Operations Manual System (POMS) SI 01130.130 in determining the resources of the applicant’s father for purposes of the applicant’s eligibility for Supplemental Security Income (SSI).

OPINION

The applicant’s uncle does not hold an equitable interest in the subject property that would allow the agency to apply the undue hardship exclusion described in POMS SI 01130.130.

BACKGROUND

C~ (Applicant) is a disabled child who was receiving SSI. Applicant resides in Georgia with his father, J~ (Applicant’s father). During a review of Applicant’s continued eligibility for SSI, Applicant’s father reported that he is the legal fee simple owner of the home of his brother, E~ (Applicant’s uncle). The home (subject property) is located in New York. The agency also verified that Applicant’s father is the sole owner in fee simple of the subject property.

Both Applicant’s father and uncle reported that Applicant’s uncle provided the cash to purchase the subject property. Applicant’s father acted as the legal purchaser of the subject property because Applicant’s uncle is an undocumented resident and this undocumented status impeded his ability to purchase the subject property. Although all legal documents indicate that Applicant’s father is the sole owner of the subject property, Applicant’s father and uncle reportedly have an informal understanding that Applicant’s uncle is the owner of the subject property.

Applicant’s father stated that he has not invested any money in the subject property. Applicant’s uncle reportedly maintains the subject property and pays all taxes that arise from the subject property.

The agency has counted the subject property among the resources of Applicant’s father. This determination has rendered Applicant ineligible for SSI and created an overpayment on Applicant’s account.

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 (2017).^[1] “Resources” include cash or other liquid assets or any real or personal property that an individual owns and could convert to cash to be used for his or her support and maintenance. See Act § 1613; 20 C.F.R. § 416.1201(a). When determining a child’s eligibility for SSI, the agency generally must deem the resources of the child’s parents who are living in the same household as the child to be the child’s resources. See Act § 1614(f)(2)(A); 20 C.F.R. § 416.1202(b); POMS SI 01310.001; POMS SI 01310.145.

Real property that an individual owns that does not meet the definition of an excluded home under the Act is considered non-home real property.^[2] See POMS SI 01140.100A. Non-home real property is a potential resource for SSI purposes. See 20 C.F.R. § 416.1201(a); POMS SI 01140.100B. Whether non-home real property is a resource of an individual may depend on the ownership interest that the individual has in the property, and the agency generally looks to applicable state law to determine an individual’s ownership interest in property. See POMS SI 01110.500A, C. The agency assumes, absent evidence to the contrary, that an individual can sell his or her share of non-home real property, and the agency must count the current market value of the non-home real property that belongs to the individual as a resource. See POMS SI 01140.100B.

However, when the individual “jointly” owns the non-home real property with a resident of the property and sale of the property would cause undue hardship to the “other owner or owners” due to loss of housing, the value of the individual’s ownership interest in the jointly owned real property is an excluded resource. See Act § 1613(b)(2)(A); POMS SI 01130.130A.1. We contacted the agency’s Office of SSI & Program Integrity Policy for advice on whether the agency intended for the undue hardship policy in POMS SI 01130.130 to cover a situation like the one presented in Applicant’s case. Their SSI Income Resources and Payment Determination Team advised us that, for POMS SI 01130.130 to apply in the present situation, Applicant’s uncle must have an equitable interest in the property that creates joint tenancy ownership with Applicant’s father.

Because the subject property is located in New York, the agency applies New York law to determine the ownership interest, if any, that Applicant’s uncle has in the subject property. See POMS SI 01110.500A, C. Under New York law, co-ownership of real property is classified as a tenancy in common, a joint tenancy, or a tenancy by the entirety. See N.Y. Est. Powers & Trusts Law § 6-2.1.^[3] Individuals must be married to own property in tenancy by the entirety. See Reister v. Town Board of Fleming, 218 N.E.2d 681, 682 (N.Y. 1966), see also N.Y. Est. Powers & Trusts Law § 6-2.2(b), (c). Applicant’s uncle and father are not married, and thus, they cannot own the subject property in tenancy by the entirety. When unmarried individuals co-own property, they are presumed to own the property as tenants in common unless a document conveying ownership of the property expressly declares the existence of a joint tenancy. See N.Y. Est. Powers & Trusts Law § 6-2.2(a); Estate of Menon v. Menon, 756 N.Y.S.2d 639, 641 (N.Y. App. Div. 2003). “To overcome this strong presumption,” one must produce “clear and convincing evidence that a joint tenancy was intended to be created rather than a tenancy in common.” Menon, 756 N.Y.S.2d at 641.

Under New York law, a joint tenancy can be created if there is a disposition of property to two or more persons as executors, trustees or guardians. N.Y. Est. Powers & Trusts Law § 6-2.2(e). A joint tenancy under New York law creates a right of survivorship among the co-owners, which means that, when a co-owner dies, his ownership interest is transferred to the co-owner who survives him. See Smith v. Bank of Am., N.A., 957 N.Y.S.2d 705, 707 (N.Y. App. Div. 2012). In contrast, when a co-owner of a property held by tenants in common dies, his ownership interest is transferred to his estate. See Melnick v. Press, 809 F. Supp. 2d 43, 58 (E.D.N.Y. 2011) (interpreting New York law).

Here, there is no evidence that Applicant’s father or uncle considered what would happen to the subject property upon either of their deaths. Indeed, the available evidence indicates that Applicant’s father and uncle did not intend to be co-owners of the subject property. Rather, they intended for Applicant’s uncle to be the sole owner of the property. Applicant’s father was involved in the purchase of the property only so that Applicant’s uncle could overcome the legal impediments to purchasing the property that arose from his undocumented status. Thus, clear and convincing evidence that Applicant’s father and uncle intended to create a joint tenancy when the subject property was purchased does not exist. Further, if Applicant’s uncle has any ownership interest in the subject property, for which all legal documents indicate Applicant’s father is the sole owner, the presumption under New York law that Applicant’s father and uncle own the property as tenants in common would stand.

In short, regardless of whether Applicant’s uncle has an equitable interest in the property, the equitable interest would not create a joint tenancy with Applicant’s father under New York law. Therefore, pursuant to the guidance we received from SSA’s Office of SSI & Program Integrity Policy, the agency cannot exclude the subject property from the resources of Applicant’s father through POMS SI 01130.130.

CONCLUSION

For the reasons discussed above, the agency cannot exclude the subject property under POMS SI 01130.130 in determining the resources of Applicant’s father.

The issue concerns a conservatorship account set up for an individual. The Court order allows the Conservator to use the funds for the support and maintenance of the individual. Additionally, the Court ordered the Conservator to send the individual's mother a specific amount of money each month for the individual's food, clothing, medication, medical care and necessities related to his special needs. Thus, since the conservatorship funds are available for the support and maintenance of the individual, they are considered the individual's resource.

You have requested our assistance in determining whether the conservatorship account of claimant A~ (the "claimant") is a countable resource to the claimant or whether court-ordered distributions from the conservatorship account should be treated as income to the claimant. We conclude that the conservatorship account is a resource to the claimant.

The Facts

On February 1, 1995, the Supreme Court of the State of New York, County of Queens (the "Court") ordered that W~, the Conservator of claimant's account (the "Conservator") "provide for the personal well-being of the Conservatee [the claimant] . . . and to apply so much of the income and principal as necessary for the comfort, well being, support, maintenance and expenses of the Conservatee."

On June 9, 1995, the Court ordered that the Conservator make the following payments out of the funds of the Conservatee:

a. To G~, the mother, custodian and Caretaker of the claimant, $700 per week for the costs associated with home care attendant services;

b. To G~, $1,050 per month to be used as and for food, clothing, medication, medical care and necessaries all associated with the claimant's special needs. The money will be divided as follows:

1. $150 per month for medication; 2. $200 per month for medical care; 3. $350 per month for food; 4. $350 per month for clothing and supplies.

The claimant was born on September 20, 1982.

Discussion

The funds in the conservatorship account are a resource to claimant if they are available for his or her support and maintenance. 20 C.F.R. § 416.1201(a). Pursuant to this regulation, the POMS states that funds in a conservatorship account are considered available if state law permits such funds to be released for an individual's support and maintenance. POMS SI 01140.215B1. If the funds in a conservatorship account result from a personal injury award, absent evidence to the contrary, the funds are not considered a countable resource for minors in New York. POMS SI R01140.215C.1. See 22 N.Y.C.R.R. § 202.67. If the funds did not result from a personal injury award, absent evidence to the contrary, the funds are available for the minor's support and maintenance. POMS SI R01140.215.C.1.

Here, the specific terms of the Court order make it clear that the conservator may use as much of the principal and income as necessary for the "comfort, well being, support, maintenance and expenses of the Conservatee" (emphasis added). Additionally, the Court has also ordered that the Conservator send a specific amount of money each month to claimant's mother for use for claimant's food, clothing, medication, medical care and necessaries related to his special needs. Thus, the requisite evidence shows that the funds are available for the maintenance and support of the claimant. Regardless of the source of the funds, the conservatorship account is a resource to the claimant.

Once claimant turns eighteen, the account is presumed to be a countable resource. SI R01140.215C.1. New York law requires that the guardian (formerly called a conservator) shall "use the property and financial resources and income available therefrom to maintain and support the incapacitated person. . . ." Mental Hygiene Law § 81.20. Thus, after the claimant turns eighteen, both New York Law and the terms of the conservatorship account make it clear that the funds will be available for the care and maintenance of the claimant and thus, will continue to be a resource to the claimant.