Legal Question in Real Estate Law in New York

deeds, life use and occupancy

If a deed gives a lifetime use and occupany on a dwelling to someone, does that person have the right to borrow money or have a mortgage filed against the property in their name?

senario: my elderly client was given a grant for repairs on her home. these grants are recorded as liens on the property. The last deed on file is from my client deeding the property to her two daughers. The deed description states that my client( the mother) can have use and occupancy of the dwelling until death.

Asked on 10/05/04, 4:23 pm

3 Answers from Attorneys

Walter LeVine Walter D. LeVine, Esq.
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Re: deeds, life use and occupancy

While I agree with Phroska, the question has more interesting ramifications. You do not describe what type of repairs were required. If they were of a type to maintain and improve the property, which would benefit the remaindermen (such as a new roof, new heating system, etc.), this was a benefit to them. Plus, the grant saved them money. The problem is compounded because the Deed was between parent and children, with no allocation of any financial responsibility for repairs and maintenance, nor an expressed purpose for the Deed. I always question the actions of attorneys who prepare these types of Deeds, without having some extraneous document spelling out details of what can and cannot be done, who foots the bills, the purpose of the transfer, etc. There may have been legitimate reasons for the inter-family transfer that would ultimately benefit the children (estate planning, possible future medicaid qualification or other financial reasons). Maybe the mother just wanted to preserve the home for the children, but could no longer afford to keep it and pay all the bills. If the children will get the ultimate equity, keeping the house preserved and maintaining its habitability, why are they complaining if some of their anticipated equity has been depleted to provide something that might have been necessary. More information should be ascertained and, perhaps, something now be written to cover the rights and responsibilities for future repair needs, with expense allocation spelled out.

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10/11/04, 10:22 am
Arnold Nager Arnold H. Nager, Esquire
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Re: deeds, life use and occupancy

The liens on the property continue and must be paid, even after the death of the life tenant.

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10/05/04, 4:51 pm
Phroska L. McAlister PHROSKA LEAKE McALISTER
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Re: deeds, life use and occupancy

Generally, A person with a "life estate" can do anything with and to [the] property that an "owner" or title holder of any property can; Except, that they cannot Transfer title to another, so as to "cut off" the interest of the "survivor" property owner. Note, A mortgage loan or lien, does not deprive an owner of title to property.

Also, please note, there are certain "special" repair and maintenance "grant" programs available to eligible seniors, designed to insure that, the senior, is able to maintain their home, for their safety and the community needs to prevent property dilapidation. Some of those programs do not require repayment and if a loan, the loans are usually at very favorable rates; and at rates not available to a "non" senior.

So, it probably was a good thing, even if needs to be repaid

Good luck,

Phroska L. McAlister,ESQ

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10/06/04, 1:46 am

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