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Grantors’ Intent Stays Even When Love Goes

by | Aug 20, 2018 | Contracts


Buying property together as a couple can be very tricky. Relationships can change quickly – sometimes faster than legal documents can be changed. This is precisely what happened in Burke v. Bernardini, a New Jersey Appellate Court case decided last month.   Mr. Burke and Ms. Bernardini knew each other for about 25 years before they began dating and then living together. A few years after they started dating, Burke bought a home and he spent about $100,000 for improvements. Both of them paid for home furnishings. They made an agreement that specified how ownership of the home was split. It said:

“Promise to Bernardini. Burke acknowledges and agrees that Bernardini has provided, and will continue to provide companionship to him [for] an indefinite length. Burke promises . . . that . . . the [h]ome shall be deeded . . . in the name of ‘Burke and Bernardini as joint tenants with the right of survivorship,’ in accordance with [the law].”

This clause has two important legal aspects. The first is what looks like a promise that Bernardini will continue to be his companion for an unspecified length of time. The second is what is called the “right of survivorship.” In the law, these words mean that they own the property together and that if one of them dies, the other inherits his or her share completely. This type of arrangement is often created between two married parties. The deed also reflected this “joint tenancy” arrangement.

A few years after the agreement and deed were done, both with the joint tenancy language, Burke and Bernardini ended their relationship, and Burke moved out of the house. He then sued  to have Bernardini transfer her one-half ownership interest to him without any payment, claiming that the “right of survivorship” was conditioned on her continued companionship. Because she was no longer providing that companionship, he said, the right of survivorship was no longer applicable. He instead argued it was a “joint venture.” 

The courts always try to find and uphold the two sides’ intent when it comes to property.   This case was no different. The lower court judge said that the agreement and deed undeniably created a joint tenancy, even if the parties conduct might have suggested otherwise. The agreement contained no evidence of a joint venture. Title to the property was taken in both parties’ names. There was no reason to find that a joint tenancy had not been created, with Bernardini’s rights being equal to Burke’s.  The Appellate Court agreed. 

If the relationship changed, they should have changed their deed and prepared an agreement that reflected the new arrangement. 

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