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Possessory Interests in Real Estate

By Barbara Strapp Nelson

The names set forth on a deed may not always reflect the interests of all parties in the real property.  One such interest is a possessory one of a spouse to joint possession in property occupied as a couple's principal matrimonial residence.  This type of interest is a statutory creation. N.J.S.A. 3B:28-3 provides that during life every married individual shall be entitled to joint possession with his spouse of any real property which they occupy jointly as their principal matrimonial residence and to which neither dower nor curtesy applies.   The effect of this statute is that title to property acquired by only one spouse on or after May 28, 1980 and occupied by both spouses as their principal matrimonial residence cannot be transferred without the consent of both spouses.  All other real property owned solely by either spouse which is not their principal matrimonial residence may be transferred without the consent of the other spouse.
 

This right of joint possession cannot be released, extinguished or subordinated without the consent of the spouse who is entitled to joint possession, except by judgment of a court of competent jurisdiction.
 

Pursuant to subsection b. of N.J.S.A. 3B:28-3, the right of joint possession may be released, subordinated or extinguished by either spouse by means of a premarital agreement, separation agreement, or other written instrument.  Subsection c. provides that the right of possession shall be extinguished by the consent of both parties, the death of either spouse, by judgment of divorce, separation or annulment, by other order or judgment which extinguishes same, or by voluntary abandonment of the principal matrimonial residence.
 

The right of joint possession may be subject to a mortgage lien. N.J.S.A. 3B:28-3.1 provides that the right of joint possession is subject to the lien of a mortgage, irrespective of the date when the mortgage is recorded, provided:
    a. The mortgage is placed upon the matrimonial residence prior to the time that title to the residence was acquired by the married individual; or
    b. The mortgage is placed upon the matrimonial residence prior to the marriage; or
    c. The mortgage is a purchase money mortgage; or
    d. The parties to the marriage have joined in the mortgage; or
    e. The right of joint possession has been subordinated, released or extinguished by subsection b. or c. of N.J.S. 3B:28-3.
 

Thus, if the principal matrimonial residence is being refinanced during the marriage, even if title to the property is in the name of only one spouse, the mortgage will have to be executed by both spouses.
 

For real estate in New Jersey acquired by a married person prior to May 28, 1980, a life estate interest was provided by means of dower for the wife and curtesy for the husband.
 

The statutory rights of dower and curtesy gave the non-owning spouse a right to a life estate in one-half of the real property owned by the other spouse at the time of that spouse's death.  N.J.S.A. 3B:28-1.  Dower and curtesy interests were created upon the acquisition of the property by a spouse in that spouse's name only - or upon the date of the marriage between the two spouses, whichever date was later - until May 28, 1980, the date dower and curtesy were abolished by the New Jersey Legislature (N.J.S.A. 3B:28-2).  Property acquired on or after May 28, 1980 is not subject to dower or curtesy, nor is property acquired before that date by an unmarried person who later married on or after May 28, 1980. Unlike the right of joint possession, all real property owned by a spouse individually, not just the principal matrimonial residence, was subject to dower and curtesy. 
 

In those situations where dower and curtesy interests still exist, the non-owning spouse must sign the deed conveying the property for the owning spouse to be able to convey clear title to a purchaser.

Full post as published by New Jersey Law Blog on October 20, 2010 (boomark / email).