PS 01810.033 New Jersey
A. PS 01-015 SSI Resource Issue - Home Ownership of Ramona A~
DATE: February 11, 1999
This opinion concerns whether a house is counted as a resource for an individual seeking SSI eligibility. It hinges on whether this individual has the right to sell her interest in the house. She and her husband owned the house under tenancy by the entirety prior to their divorce. The divorce decree stipulated that the husband would sell the house and convey 55% of the proceeds to the wife. Subsequently, the husband decided not to sell the house and continued to live in it. Under New Jersey law, a divorce terminates the tenancy by the entirety and converts it to tenancy in common. As a tenant in common, the wife may freely sell her interest in the home without the agreement of the husband. Because she can freely sell her interest in the home, it is counted as a resource to her for SSI purposes.
You have requested our opinion as to whether a house jointly owned by Ramona A~ and her ex-husband, Jesus M~, is considered a resource to Ms. A~. We conclude Ms. A~'s interest in the house is a resource to her.
You have informed us that Ms. A~ and her ex-husband jointly own a house at 218 Sheridan Street, in Perth Amboy, New Jersey. They purchased this property while they were married. Ms. A~ does not have a copy of the deed to the house and does not remember how title to the house is held. As part of their October 1990 divorce, Ms. A~ and Mr. M~ mutually agreed that the house was to be put on the market within 30 days of the divorce judgment. Ms. A~ was to receive fifty-five percent of the proceeds; Mr. M~, forty-five percent. (Divorce Decree, filed October 15, 1990). Mr. M~, however, has refused to sell the house. He still lives in it and has submitted a letter asserting that it would cause undue hardship to him if he were forced to sell the house.
In New Jersey, title to property held by two or more people can be held in one of three ways: as a tenancy by the entirety, as a joint tenancy, and as a tenancy in common. See N.J.S.A. §§ 46:3-17, 46:3-17.1, 46:3-17.2. Absent an expressed intent to the contrary, a conveyance to a husband and wife vests title to them as tenants by the entirety. N.J.S.A. § 46:3-17.3. See also Celentano, 13 New Jersey Practice § 5.14 (citing 1 Patton on Titles § 236, Fulper v Fulper 54 N.J.Eq. 431, 34 A. 1063 (Err. & App. 1986); Cadgene v. Cadgene, 17 N.J.Misc. 332, 8 A.2d 858 (Sup.Ct. 1939), aff'd 124 N.J.L. 566, 12 A.2d 635 (Err. & App. 1940). Thus, most probably, prior to their divorce, Ms. A~ and Mr. M~ held their property as tenants by the entirety.
New Jersey law makes clear that during marriage, neither spouse may unilaterally sell his or her interest in the tenancy by the entirety. N.J.S.A. § 46:3-17.4. However, a divorce terminates a tenancy by the entirety and converts it to a tenancy in common. Celentano, 13 New Jersey Practice § 5.7; § 5.13 (citing Freda v. Commercial Trust Co. 118 N.J. 36, 570 A.2d 409 (1990)); and § 5.17 (citing Gery v. Gery, 113 N.J.Eq. 59, 166 A. 108 (Err. & App. 1933). Sbarbaro v. Sbarbaro, 88 N.J.Eq. 101, 102 A. 256 (Ch. 1917); Eberle v. Somonek, 24 N.J.Super. 366, 94 A.2d 535 (Ch. Div. 1953), aff'd 27 N.J.Super. 279, 99 A.2d 377 (App. Div. 1953); Lawrence v. Lawrence 79 N.J.Super. 25, 190 A.2d 206 (App. Div. 1963)). Thus, Ms. A~ most likely now holds her interest in the house as a tenancy in common with Mr. M~.
A tenant in common may freely convey her undivided interest in the common property, either to her co-tenant or to a stranger. Casner, American Law of Property § 6.10; Campbell v. Hough et al., 73 NJ Eq. 601, 68 A. 759 (Ch. 1908). Because Ms. A~ may sell her undivided interest in the property, her fifty-five percent interest in the house is a resource to her. 20 C.F.R. § 416.1201(a) and (c).