FOR BREAKING NEWS VISIT WWW.QNS.COM MARCH 7, 2019 • HEALTH • THE QUEENS COURIER 43
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Elder Law Minute TM
Deciphering Diff erent Forms of Property Ownership
BY RONALD A. FATOULLAH, ESQ.
AND JOSEPH BRENINGSTALL
ELDER LAW
When two or more people own real
property, it is important to be aware of
the various forms of co-ownership and
the rights and limitations associated with
each type of ownership.
Th ere are three forms of commonly
used property ownership: tenancy in
common (TIC), joint tenancy (JT), and
tenancy by the entirety. In this article, we
will briefl y describe each of the property
ownership categories.
In a tenancy in common, each co-owner
Mobility/Falls and Aging
A resident in a facility where I was the
Director of Nursing, claimed the reason
he and his wife got married while in their
late eighties, was the following,” It was
a marriage of convenience. Rather than
using a cane or a walker, we can lean on
each other.”
Mobility is the capacity one has for
movement. In infancy it is a major mode
of learning and interacting with the environment.
Th roughout life it remains a
signifi cant means of contact, sensation,
exploration, pleasure and control.
In old age one moves more slowly and
purposefully, sometimes with more caution.
Movement is integral to the attainment
of all levels of need, as conceived
by Maslow’s Needs identifi ed by elders,
which include pride, maintaining dignity,
social contacts and activity. All of
these are facilitated by mobility. Th us in
terms of Maslow’s hierarchy of needs and
the needs identifi ed by elders, maintaining
mobility is an exceedingly important
issue.
Aging produces changes in muscles and
joints, particularly of the back and legs.
Strength and fl exibility decrease markedly,
and endurance to a somewhat lesser
extent. Some normal gait changes in late
life include a narrower standing base, wider
swaying when walking, and the appearance
of a “waddle.” Steps taken are shorter and
with a decreased stepping motion. Th ese
changes are less pronounced in those who
remain active and at a desirable weight.
When mobility declines, falling becomes
a liability. Falling is one of the most serious
and frequent problems associated with
the aging process. Th e National Institute on
Aging (NIA) estimates that each year onethird
of all persons age 65 and older who
live at home fall, and about half of those fall
repeatedly. Falls and the consequent broken
hips cause 40% of nursing home admissions
annually according to NIA. Fall-related
mortality increases with advanced age and
more than doubles with each decade of life.
Th ere are many conditions that make old
people susceptible to falls that lead to accidents,
such as:
• urinary frequency and urgency leading to
unsafe maneuvering at toileting;
• improper foot wear or podiatric diffi -
culties;
• improper clothing such as long night
clothes or robes;
• improper use of wheelchair, especially
during transfer;
• mental confusion and faulty judgment.
Here are several suggestions/actions to
increase safety.
1. Family, caretaker review medications,
especially tranquilizers, as to need, dosage,
and side eff ects.
2. Review with individual the safe use of
wheelchair (ie: lock brakes before getting
up, lift foot supports before rising, etc.).
3. It was found that anxiety and slow
walking pace were correlates of the fear of
falling.
4. Check for poorly designed or unstable
furniture.
5. Avoid creating highly waxed and glossy
fl oors.
6. Avoid general clutter and obstructions.
7. Limit alcohol intake.
8. Rise slowly from bed or chair to avoid
sudden drop in blood pressure.
With all of the potential problems that
can occur as one ages, especially regarding a
decline in mobility and falling, it is recommended
that a thorough assessment of an
elderly individual who has fallen be carried
out. Th is includes:
• a physical examination be performed;
• attention should also be given to environmental
safety;
• use of walking aids, comfortable shoes;
• an exercise program designed to decrease
impaired physical mobility be encouraged.
Sheldon Ornstein Ed.D, RN, LNHA
Dr. Sheldon
Ornstein is a registered
professional nurse
with a doctoral degree
in nursing organization.
He has specialized
in the care of older
adults and has published
many articles on the subject. He
has done post-graduate work in gerontology
and has taught at several universities.
In 2013, he was inducted into
the Nursing Hall of Fame at Teachers
College, Columbia University.
owns an undivided proportionate
interest in the property, which is in many
ways similar to a sole ownership. TICs
may own their interest in any proportion,
so for example, three TICs may own
a property with one owning a 10 percent
interest, one owning a 20 percent interest
and the other owning a 70 percent
interest. A TIC has unrestricted access
to the whole property, not just an area
proportionate to their ownership interest.
A TIC is free to sell or mortgage their
interest in the property as they wish; they
are also able to dispose of their interest
in their will. TICs have responsibility
for the common costs of the property
(maintenance, utilities, upkeep, taxes)
in proportion to their ownership interest.
However, if one TIC chooses to make
improvements to a property, they cannot
force the other TICs to contribute to the
improvements.
Joint tenants are tenants that are
bound by what is referred to as the “four
unities”. JTs are required to have a unity
of interest, which means that each tenant
must have an equal interest in the property.
Th ere must also be unity of title,
meaning that each tenant’s interest arises
from the same instrument. Th ere must
be unity of possession, meaning that
each tenant must have the right to occupy
the entire property. And fi nally, there
must be unity of time, whereby each
tenant’s interest in the property must
have been acquired at the same time. If
all these prerequisites are met, a joint
tenancy is created and each tenant has
an equal right to the use and enjoyment
of the entire property as long as they live.
Th e most obvious diff erence between
a JT and TIC is that in a joint tenancy
there exists a “right of survivorship”. Th is
means that when a JT passes, his share
does not go through their estate but rather
passes to the other JTs in equal proportions.
Th is form of ownership is oft en
used as a method of avoiding probate. A
JT may sell his proportionate interest in
a property; however, this would terminate
the joint tenancy, at least as it relates
to that JTs interest, whose portion would
now be considered a tenancy in common.
For example, if there were three
JTs in a property, and one JT decided
to sell his interest, the new buyer would
own one-third of the property as a TIC,
and the other two-thirds of the property
would be owned by the remaining individuals
as joint tenants.
Th e disadvantage of each form of ownership
described above is that a tenant’s
creditors may attach the tenant’s proportionate
share of the property to settle a
debt. Th is is accomplished by the creditor
bringing a partition action, which, if
the creditor is successful, would separate
the debtor tenant’s share of the property
from the rest of the property and allow
the creditor to force the sale of that portion
of the property.
Tenancy by the entirety, which is only
available to married people and only
available in certain states (including New
York), may provide some measure of
protection against a tenant’s creditors.
A tenancy by the entirety is similar to
a JT in that there is a right of survivorship,
but it is diff erent from both the JT
and TIC with respect to the fact that a
tenant is not permitted to transfer his
interest in the property independent of
his co-tenant. Th is in turn would shield
his portion of the property from creditors
as long as he predeceases his spouse.
A creditor may place a lien on the property,
but it would only be eff ective in an
instance where the non-debtor spouse
passes fi rst.
It is important to be clear as to what
method of ownership is being used with
regard to a particular property. If a deed
is ambiguous, then TIC is the default
form of ownership that will be assumed,
which may not be what the tenants
intended.
When it comes to estate planning, the
nuances between the various methods
of property ownership described above
could have ramifi cations with regards to
estate taxes and probate. It is advisable
to meet with an elder law or estate planning
attorney to better understand what
options are available in one’s particular
scenario.
Ronald A. Fatoullah, Esq. is the founder
of Ronald Fatoullah & Associates,
a law fi rm that concentrates in elder
law, estate planning, Medicaid planning,
guardianships, estate administration,
trusts, wills, and real estate. Joseph
Breningstall is an attorney with the fi rm.
Th e law fi rm can be reached at 718-
261-1700, 516-466-4422, or toll-free at
1-877-ELDER-LAW or 1-877-ESTATES.
Mr. Fatoullah is also a partner with
Advice Period, a wealth management
fi rm that provides a continuum of fi nancial
and investment advice for individuals
and businesses, and he can be reached
at 424-256-7273.
RONALD FATOULLAH
ESQ, CELA*
/WWW.QNS.COM
