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).
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
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.
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). “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. 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. 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.
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.