Lance R. Pomerantz
Attorney at Law

Land     Title     Law

“Constructive Notice”  The  Newsletter


Excerpted from the February 14, 2012 mailing of "Constructive Notice":

Love, Death & Real Estate

Its a familiar story: Boy meets Girl. Boy is in contract to purchase a parcel of real estate. Boy tells Girl Marry me and Ill add your name to the contract as a purchaser. Girl accepts proposal, closing occurs and deed reads: Boy and Girl, as joint tenants with right of survivorship. But, sadly, the wedding never takes place. Eventually, Boy, his judgment no longer compromised by the beauty of his beloved, brings an action pursuant to Civil Rights Law §80-b. That section permits an action for rescission of a deed to real property when the sole consideration...was a contemplated marriage which has not occurred.... It also permits the court to award damages in lieu of rescission. Tragically, before judgment is rendered, Boy dies.

Girl, presumably devastated by the untimely demise of Boy, takes comfort in knowing that, as surviving JTWROS, she will always have a roof over her head. Unfortunately, the deities of love (in the form of the Appellate Division, Fourth Department), disagreed.  Northern Trust, NA, as Administrator of the Estate of Richard Sarkis v. Delley, 2011 NY Slip Op 9710 (4th Dept., December 30, 2011).

The Court concluded that an action pursuant to Civil Rights Law §80-b raises issues regarding the title and ownership interest in real property that survive the death of a party. The Court distinguished this situation from that of a pending partition action or pending divorce action. [A] section 80-b action for the return of real property is not extinguished upon the death of the party who commenced the action, even where, as here, the subject property is held as joint tenants with right of survivorship.



Hasnt the Court just extended the meaning of rescission? Typically, rescission leaves the parties in the same position they were in before the deed was executed. But in this case, Boy did not make a deed. He merely amended his contract of sale to add Girl as a purchaser, presumably with the assent of both the seller and Girl. It seems like the court is actually reforming the deed to deprive Girl of the rights she acquired.

Unlike the girl in Trotta v. Ollivier (see Constructive Notice, Nov. 25, 2011),  Boy had the good sense to get a promise to marry from his intended before closing.  By doing so, Boy was not only able to negate the unambiguous grant in the deed, but to preserve his right to do so past his death. It is particularly noteworthy that had Boy merely sought a partition of the property, that cause of action would have died with him, leaving Girl in title to the whole. Could the rationale of Sarkis be used to support a post-death §80-b action by the personal representative of the decedent?