New York Deed Forms for Real Estate Transfers
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What Types of Deeds Are Recognized in New York?
Property owners in New York can sign and record a deed to transfer title to a new owner or to change how a property is titled.1 New York recognizes several types of deeds that a living owner can use to transfer a property’s title. The distinction between the deed forms is the warranty of title (if any) each deed provides.
Warranty of title is a guarantee given by the current owner regarding the ownership status of the transferred property. A deed’s warranty consists of one or more promises—or covenants of title—made by the current owner. The warranties provided by New York’s deed forms—listed from strongest to weakest warranty—are described below.
New York Warranty Deed Form
A New York warranty deed—also called a deed with full covenants—transfers property with complete warranty of title.2 The current owner guarantees that the new owner will receive a good title unimpaired by liens, mortgages, or other adverse interests.3 The current owner also guarantees that no third-party claims will disturb the new owner’s title and that—if such a claim arises—the current owner will accept responsibility for it.
The guarantee a New York deed with full covenants provides covers the property’s entire ownership history. The deed places all risk of title problems on the current owner.
New York Special Warranty Deed Form
A New York special warranty deed form splits the risk of title problems between the current owner and new owner. A special warranty deed transfers property with a limited warranty—also called a special warranty. The current owner guarantees that nothing has occurred to impair the property’s title while the current owner owned it. The warranty covers issues that arose while the current owner held title but excludes issues from before the current owner acquired the property.
Special warranty deeds are not among the statutory short-form deeds adopted by the New York legislature. They are relatively uncommon in New York and used mostly in commercial transactions.
New York Bargain-and-Sale with Covenant Deed Form
A New York bargain-and-sale with covenant deed transfers property with a guarantee that the current owner has done nothing to impair the property’s title.4 The new owner assumes the risk of any title problems that were not caused or permitted by the current owner. The current owner is responsible for issues that arose from his or her actions or inaction.
New York’s statutory short-form bargain-and-sale deed with covenant includes a single covenant that the current owner “has not done or suffered anything whereby the said premises have been incumbered.”5 The parties can agree to add other covenants.
New York also has a statutory short-form bargain-and-sale deed without covenant. N.Y. Real Prop. § 258 (Statutory Form B)—which is essentially the same as the deed with covenant except that it omits the covenant regarding the current owner’s acts. A bargain-and-sale deed without covenant functions similarly to quitclaim deed.
New York Quitclaim Deed Form
A New York quitclaim deed transfers the entire interest the current owner holds in the property with no warranty of title.6 The current owner does not guarantee a valid title or that there are no liens on the property. The new owner assumes all risk of problems with the property’s title and cannot sue for breach of warranty or breach of covenant if a title problem arises.
Quitclaim deeds typically involve no consideration—or value provided by the new owner in exchange for the deed. Quitclaim deeds are useful for retitling real estate—such as by transferring legal title to a living trust. They can also be used to transfer property as a gift—in which case the deed may be called a gift deed. Or, they can release a co-owner’s interest to the other co-owner—in which case the deed may be called a release deed.
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What Types of Estate Planning Deeds Are Used in New York?
Estate-planning deeds let property owners arrange in advance for title to transfer to a new owner upon the current owner’s death. The principal advantage of estate-planning deeds is that they allow real estate to bypass probate. The probate process is often expensive and time-consuming, so avoiding probate reduces the cost and burden of estate administration.
New York Survivorship Deed
A survivorship deed places title in the names of at least two owners who share a right of survivorship—which means a surviving owner automatically receives a deceased owner’s interest. New York recognizes two co-ownership forms with a right of survivorship: joint tenancy and tenancy by the entirety.7 Tenants by the entirety must be married spouses.
New York deeds are titled Survivorship Deed only infrequently. It is more common for a survivorship deed to be titled Quitclaim Deed, Bargain-and-Sale Deed, or Deed with Full Covenants. A property owner forming an estate plan, for example, might record a quitclaim deed that transfers title to the owner and the owner’s child as joint tenants with right of survivorship to allow the property to avoid probate.8
New York Life Estate Deed
A life estate deed creates an ownership interest—called a life estate—that lasts until the death of the interest holder—called the life tenant. A life estate deed also names another person—called the remainderman or the beneficiary—who automatically takes title when the life tenant dies. A New York property owner creating a life estate deed for an estate plan typically keeps the life estate and names a family member as the beneficiary.
A life estate deed’s beneficiary has a vested future interest once the deed is signed and recorded. A life tenant therefore cannot transfer complete ownership of the property—only the life estate—unless the beneficiary joins in the transfer.9
Attorney Practice Note: New York law does not recognize two types of estate-planning deeds that let owners keep complete possession and control of property—transfer-on-death (TOD) deeds and lady bird deeds. TOD deeds—which are recognized in a majority of states—allow a property owner to name a beneficiary to take title outside probate at the owner’s death without sacrificing the owner’s present rights in the property. Lady bird deeds—also called enhanced life estate deeds—are permitted in only a few states. Lady bird deeds are like traditional life estate deeds except that the property owner who reserves the life estate also reserves the right to sell, transfer, or mortgage the property without the beneficiary’s consent.
A New York property owner can use a revocable living trust to retain possession and control of property during life and transfer title outside probate when the owner dies.
What Are the Ways in Which Multiple Owners Can Jointly Own New York Real Estate?
Multiple persons who take title to property jointly must select a form of co-ownership. New York law allows for three options.
Tenancy in Common
Tenancy in common is often called the default form of co-ownership because co-owners who do not declare a different ownership form are tenants in common. Co-owners who hold title as tenants in common have separate interests in the same property. A co-owner can transfer an interest independently and can include it in his or her will. Tenancy in common interests are usually described as a fraction or percentage of the property’s title.
The defining feature of joint tenancy is the right of survivorship shared by the co-owners—which keeps the property from going through probate. A surviving joint tenant automatically receives a deceased joint tenant’s interest. If only one joint tenant remains living, then he or she holds complete title to the property.
New York law allows an individual property owner to create a joint tenancy by recording a deed that transfers title to the current owner and a co-owner as joint tenants.10
Tenancy by the Entirety
Tenancy by the entirety has a right of survivorship like joint tenancy. The main difference is that tenants by the entirety must be married spouses. A tenancy by the entirety therefore cases if the co-owners divorce.
A deed that transfers New York property to two new owners identified as married spouses creates a tenancy by the entirety unless it declares another co-ownership form. A property owner can record a New York deed in favor of the owner and the owner’s spouse to create a tenancy by the entirety.11 Along with the right of survivorship, tenancy by the entirety also provides the married co-owners heightened protection against creditors.
Real Estate Ownership Through Trusts
A living trust—also called a life time trust in New York—can allow multiple persons to retain possession and control of property without holding legal title.12 A trust has a trustee who holds legal title to the property and one or more beneficiaries who have the right to enjoy the benefits of the property.13 The person who transfers the property to the trustee is called the settlor or grantor. Under New York trust law, the same person can be a trust’s settlor, trustee, and beneficiary—as long as there is another person with a beneficial interest.14
A New York deed that places real estate in a trust should transfer title to the trustee in the capacity as trustee.15 The deed must be recorded in the appropriate county to formally transfer the property to the trust.16
What Are the Rules for Spousal Ownership of New York Real Estate?
New York law gives married persons rights in their spouses’ property. A spouse’s rights can affect how a property owner chooses to title real estate and treat assets in an estate plan. A married person should consider potential spousal property rights when acquiring or transferring New York real estate.
New York Homestead Rights and Spousal Joinder
Many states give nonowner spouses rights in the other spouse’s real estate or require both spouses to sign a deed that transfers their primary residence—or homestead. New York law does not require a nonowner spouse’s signature on a deed that transfers a homestead titled only in the other spouse’s name. New York has also abolished dower and curtesy—traditional rights that (where still recognized) give spouses legal rights in each other’s real estate.17
Spousal Intestate Share
A spouse’s intestate share is the portion of a deceased spouse’s estate to which the surviving spouse is entitled if the deceased spouse has no will. A spouse’s intestate share in New York depends on whether the deceased spouse leaves surviving children or grandchildren—collectively called descendants. The surviving spouse receives the entire estate if the deceased spouse has no surviving descendants.18 If the deceased spouse has one or more surviving descendants, the surviving spouse receives $50,000.00, plus half of the balance.
Spousal Elective Share
New York’s elective share law gives a surviving spouse a guaranteed interest—the elective share—in the deceased spouse’s estate.19 A surviving spouse has a right to an elective share even if the deceased spouse’s will provides for a lesser interest. One or both spouses can waive their elective share rights by signing a written, notarized waiver while both spouses are living.20
New York’s elective share is a portion of the deceased spouse’s net estate—which is the value of the deceased spouse’s assets after deducting final expenses and administration costs.21 The net estate used to calculate the elective share includes certain non-probate assets—for example, assets held in trust, subject to a payable-on-death (POD) designation, or co-owned with a right of survivorship. The net estate may also be increased for the value of transfers to someone other than the surviving spouse if the transfer is given as a will substitute within one year before death and for less than full consideration.22
New York has two standards for measuring the elective share amount—depending on whether the deceased spouse has a will that disposes of the entire estate.
- If the will covers the entire estate, the elective share is equal to either one-half of the deceased spouse’s net estate (if there are no surviving children) or one-third (if there are surviving children).23
- If the deceased spouse leaves no will or leaves a will that addresses only part of the estate, the surviving spouse receives either $50,000.00 or one-third of the net estate—whichever is greater.24
The actual amount the surviving spouse receives is reduced by the value of assets that pass absolutely to the surviving spouse through intestate inheritance, will provisions, or non-will distributions.25
Where Are Deeds Filed in New York?
Each New York county has a recording officer—either the county clerk or county register—who is responsible for maintaining the county’s land records.26 A deed is recorded by filing it with the county clerk or county register of the county where the property is located. A recorded deed is part of the official public record.27 It receives a book and page number and gives effective notice of the transfer to future purchasers, creditors, and other third parties.28
Does New York Allow Electronic Recording?
New York allows counties to implement programs for electronic recording of deeds.29 Registered users can file deeds electronically in participating counties through third-party vendors—called electronic facilitators. A deed in electronic format with an electronic signature satisfies New York’s requirement that deeds be in writing and signed by the transferring owner.30
Electronically recorded deeds must be prepared and submitted in compliance with New York’s administrative rules governing electronic recording of deeds.31
What Is the Cost to File a New York Deed?
A person who wants to record a deed must pay the recording fee to the county recording officer before the deed is recorded.32 Recording-fee amounts for deeds vary between counties. A typical fee is $45.00 for one page and $5.00 for each page over one. Recording officers may also charge a fee to cover the cost of preparing and sending the notice required for deeds that transfer residential properties.33
New York also requires the following fees for submitting the forms that accompany deeds:34
- The real property transfer report (RP-5217) fee is $125.00 for residential or farm properties.
- The real property transfer report (RP-5217) fee is $250.00 for commercial properties.
- The transfer tax affidavit (TP-584) fee is $5.00 or $10.00, depending on the county.
Further information on New York’s additional forms is included in the last section of this article.
Does New York Charge a Transfer Tax for Real Estate Transfers?
New York’s real estate transfer tax applies to deeds that transfer real estate for consideration over $500.00.35 The seller is primarily responsible for paying the transfer tax—except that the buyer pays the mansion tax and supplemental tax.36 The mansion tax applies only to sales of residential properties for at least $1,000,000.00. The supplemental tax applies only to sales of New York City residential properties for at least $3,000,000.00 and other New York City properties for at least $2,000,000.00. Deeds cannot be recorded until all required transfer tax is paid.37
New York’s transfer tax rates are based on the consideration provided in exchange for the property.38 The base tax rate is $2.00 per $500.00 of consideration.39 Mansion tax is assessed at 1.00 percent of the consideration, and supplemental tax uses a schedule that starts at 0.25% and progressively increases to as high as 2.9%.40
Our article on New York’s deed recording requirements provides additional information about transfer tax.
Which Deeds Are Exempt from New York’s Transfer Tax?
New York’s transfer tax law lists 11 categories of transfers that are exempt from the tax.41 A deed is exempt if it:
- Transfers real estate for consideration under $500.00;42
- Distributes real estate pursuant to the deceased owner’s will or inheritance laws;43
- Transfers real estate to or from the State of New York, United States, or United Nations;44
- Secures a debt;45
- Confirms, corrects, modifies, or supplements a prior deed for no additional consideration; 46
- Transfers real estate for no consideration, including as a gift;47
- Is a tax sale deed;48
- Reflects a change of identity or ownership form;49
- Is a deed of partition;50
- Transfers property in bankruptcy;51
- Is a sale contract or option to purchase;52 or
- Transfers property in a tax-free area to a business in the START-UP NY program.53
Exemptions must be identified in Part 3 of the transfer tax affidavit (Form TP-584) that accompanies the deed.54 A deed is considered taxable unless the person liable for the tax shows that the deed is exempt.55
Does New York Require Any Additional Forms When Recording a Deed?
New York requires several additional forms to be submitted to the recording officer when filing a deed. The person requesting recording must submit each of the following forms with a deed:
- Cover sheet. Each county has its own cover sheet with indexing information that is recorded as part of the deed.
- Real property transfer report (Form RP52–17). Form RP-5217 (or Form RP-5217NYC in New York City) documents the transfer details and must be signed by both parties.
- Transfer tax affidavit (Form TP–584). Form TP-584 (or Form TP-584-NYC in New York City) computes the transfer tax due or identifies the applicable exemption.56
- Nonresident estimated income tax payment (Form IT-263). Sellers who do not live in New York must submit to the recording officer Form IT-2663—which estimates the amount of income tax due for the sale—along with payment of the tax.57 Sellers who are not eligible for Form IT-263 certify the reason the form is not required in Form TP-584’s Schedule D.
More information about the additional forms required when transferring New York real estate can be found in our New York deed recording requirements article.
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- N.Y. Real Prop. §§ 240(2); 290(3).
- See N.Y. Real Prop. § 258 (Statutory Form A).
- See N.Y. Real Prop. §§ 253(1)-(5) (describing statutory covenants included in a deed with full covenants).
- See N.Y. Real Prop. § 258 (Statutory Form C).
- See N.Y. Real Prop. § 253(6).
- N.Y. Real Prop. § 258 (Statutory Form D).
- See N.Y. Real Prop. § 240-b.
- N.Y. Real Prop. § 240-b(1).
- See N.Y. Real Prop. § 247.
- N.Y. Real Prop. § 240-b(1).
- N.Y. Real Prop. § 240-b(1).
- N.Y. EPTL § 1-2.20.
- N.Y. EPTL § 7-2.1.
- N.Y. EPTL § 7-1.1.
- N.Y. EPTL § 7-3.2.
- N.Y. EPTL § 7-1.18.
- See N.Y. Real Prop. §§ 189; 190.
- N.Y. EPTL § 4-1.1.
- N.Y. EPTL §§ 5-1.1; 5-1.1-A.
- N.Y. EPTL § 5-1.1(f).
- N.Y. EPTL § 5-1.1(b).
- N.Y. EPTL § 5-1.1-A(b)(1)(B).
- N.Y. EPTL § 5-1.1(c)(1)(B).
- N.Y. EPTL § 5-1.1-A(a).
- N.Y. EPTL § 5-1.1-A(4).
- N.Y. Real Prop. § 290(4).
- N.Y. Real Prop. § 290(5).
- N.Y. Real Prop. §§ 291; 319.
- N.Y. Real Prop. §291-I.
- N.Y. Real Prop. §§ 290(7)-(8); 291-I(a).
- See N.Y. Comp. Codes R. & Regs. Tit. 9 § 540.7.
- N.Y. Real Prop. § 291.
- N.Y. Real Prop. § 291.
- See N.Y. Real Prop. § 333(3).
- N.Y. Tax § 1402.
- N.Y. Tax §§ 1404(a); 1402-A(b); 1402-B(a).
- N.Y. Tax § 1410(b).
- N.Y. Tax § 1401(d).
- N.Y. Tax § 1402(a).
- N.Y. Tax §§ 1402-A(a); 1402-B(a)(1)-(7).
- N.Y. Tax §§ 1405(b)(1)-(11).
- N.Y. Tax § 1402.
- N.Y. Tax § 1401(e).
- N.Y. Tax § 1405(a).
- N.Y. Tax § 1405(b)(2).
- N.Y. Tax § 1405(b)(3).
- N.Y. Tax § 1405(b)(4).
- N.Y. Tax § 1405(b)(5).
- N.Y. Tax § 1405(b)(6).
- N.Y. Tax § 1405(b)(7).
- N.Y. Tax § 1405(b)(8).
- N.Y. Tax § 1405(b)(9) and (10).
- N.Y. Tax § 1405(b)(11).
- See N.Y. Tax § 1409.
- N.Y. Tax § 1404(b).
- N.Y. Tax § 1409(a).
- N.Y. Tax § 663(a).