USA - NEW JERSEY Law and Practice Contributed by: Steven Fleissig, David Freylikhman, Cory Mitchell Gray and David Jensen, Greenberg Traurig LLP
1. General 1.1 Main Sources of Law
2. Sale and Purchase 2.1 Categories of Property Rights Fee Simple Absolute
Real estate law in New Jersey requires atten - tion to a variety of substantive skills and practice areas. In addition to being a good draftsperson, well versed in contract and commercial law, an effective real estate practitioner in New Jersey must view each transaction in the context of the particular property, the asset class, and the cli - ent’s goals. In virtually every deal, there are tax issues, corporate issues, government issues, environmental issues, and labour and employ - ment issues, among others. In addition, an attorney must understand their client’s business objectives and tolerance for risk. A real estate attorney must take a holistic approach to any transaction to ensure careful examination of each issue that could create risk, impact practice areas outside of what is strictly “real estate”, or otherwise frustrate the spirit of the contemplated transaction. 1.2 Main Market Trends and Deals Trends and deals occurring in New Jersey can - not be shared at this time. 1.3 Proposals for Reform The most important reform proposal is New Jer - sey Assembly Concurrent Resolution 89, which proposes a temporary constitutional amend - ment allowing a State constitutional convention convened to reform the system of property taxa - tion to propose statutory changes.
Fee simple absolute is the greatest interest in real estate in NJ, granting the owner the full and exclusive right to use, possess, sell, hypothecate and even damage the property. The transfer of real property in New Jersey is deemed to be the transfer of an absolute fee simple estate, sub - ject to the terms of the conveyance instrument. N.J.S.A. 46:3-13. New Jersey does recognise variations on fee simple ownership, including fee simple defeasible estates and fee simple estate subject to a condition subsequent. Tenancy in Common In New Jersey, tenancy in common (TIC) is the most frequent form of ownership structure where there are multiple parties that will co-own real estate. Except in the case of spouses or express language in the deed, real property transfers in New Jersey to two or more grantees will cre - ate a tenancy in common in equal percent - ages and undivided (interests are all shared). N.J.S.A. 46:3-17. Deeds may also create a ten - ancy in common using the following language: “Grantor grants and conveys ownership of the property described below to Grantees, as ten - ants in common, along with all of its rights and appurtenances.” The deed may recite different ownership percentages for each tenant in com - mon. Since there is no right of survivorship, upon the death of a tenant in common, the deceased party’s interests transfer pursuant to intestate statutes or the provisions of a TIC agreement. Joint Tenancy With the Right of Survivorship Joint tenancy is a form of co-ownership which is viewed less favourably in New Jersey than tenancy in common, and is primarily known for having a “right of survivorship” which does not
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