In 2024, the New York Legislature enacted Real Property Law (“RPL”) § 424, which codified New York’s public policy in favor of transfer-on-death deeds that provide for real property to pass to beneficiaries named therein upon property owners’ deaths (RPL § 424).  More recently, in Matter of Cruz (Birks), 87 Misc3d 1229(A) (Sur Ct, Suffolk County 2025), Suffolk County Surrogate Vincent J. Messina, Jr. addressed whether a document entitled a “Survivorship Deed” (the “Deed”), as signed, but not recorded, by a decedent before (a) her death, and (b) RPL § 424 became effective, was valid.  I write to provide a summary of Cruz, which contains thoughtful analysis explaining why the Deed was valid and enforceable.

In Cruz, on July 22, 2021, the decedent executed the Deed that concerned real property located in Westhampton, New York (the “Property”) (Cruz, 87 Misc3d 1229[A], at *1-2).  The Deed “contained certain covenants that [her friend, the petitioner] was to comply with” in order to receive the Property (id.).  As relevant here, the decedent did not record the Deed with the county clerk during her lifetime (id.). 

On November 6, 2022, the decedent died (id.).  The Surrogate’s Court, Suffolk County, thereafter admitted the decedent’s Last Will and Testament (the “Will”) to probate, and appointed an executor to administer the decedent’s estate (id.).  Notably, the Will did not address the disposition of the Property (id. at *3).

Following the decedent’s death, Surrogate’s Court Procedure Act § 2105 litigation concerning the Deed ensued, as the executor of the decedent’s estate refused to recognize the Deed as valid (id. at *1-2).  Although the Deed was not recorded during the decedent’s lifetime, the petitioner “allege[d] that he complied with all covenants” contained therein, and the decedent validly “transferred the [P]roperty to him” by the Deed (id.).  Consequently, the petitioner alleged that he was entitled to a decree compelling the executor of the decedent’s estate to transfer ownership of the Property to him, or “a declaration that [the petitioner] is the rightful owner of” the Property under the Deed (id.).

The petitioner moved for summary judgment (id. at *2-3).  After considering the parties’ submissions in favor of, and against, the petitioner’s summary judgment motion, Surrogate Messina granted the petitioner’s motion (id.). 

In doing so, the Surrogate referred to several RPL provisions that were noteworthy for purposes of the Deed (id. at *2).  Those RPL sections provided as follows: (a) “conveyance” includes “every instrument, in writing, except by a will, by which any estate or interest in real property is created, transferred, assigned or surrendered”; and (b) “any such instrument ‘must be construed according to the intent of the parties, so far as such intent can be gathered from the whole instrument, and is consistent with the rules of law” (id.).  In addition, as Surrogate Messina noted: (a) RPL § 258 contains “form language for the ‘conveyance and mortgage of real property’”, with which the Deed “seemingly conforms to Schedule A and B therein”; (b) “RPL § 243 . . . provides that a deed must be subscribed by the grantor and duly acknowledged”, or if “the document is not duly acknowledged, the execution and delivery of same must be attested to by at least one witness”; and (c) “[i]t is undisputed that the [D]eed at issue was signed by the grantor/decedent, duly acknowledged before a notary, and before a witness” (id.).

Surrogate Messina continued: “To be valid, a deed must state ‘a specific grantor, a specific grantee, a proper designation of the property, a recital of the consideration, and . . . technical operative words” (id.).  Applying those concepts to the Deed, the Surrogate wrote:

The deed in question clearly states that the decedent is the grantor and the petitioner is the grantee.  The deed in question contains the legal property description in metes and bounds contained in the body of the document, together with the common street address.  There is also a “being and intended to be” paragraph which confirms that the decedent is conveying the property described that was previously conveyed to her in a recorded deed.  The consideration for the transfer is stated in the body of the document which is ‘1.00 dollars lawful money of the United States”, paid by petitioner to the decedent.

The deed contains the technical operative words of conveyance several times.  Specifically, the document states that the decedent as grantor, ‘does hereby remise and release, with general warranty covenants . . . as the sold tenant and assigns forever”, “to have and to hold the premises herein granted unto the party of the second part forever”, [grantor] has good right to convey the [property]”, “that the said premises are free from encumbrances”, “that [grantor] will execute or procure any further necessary assurance of the title to the said premises”, “[grantor] will forever warrant the title to said premises to the [grantee]” and “this deed was executed by the Grantor on this July 22, 2021” (id. at *3).

Turning to the impact, if any, that the fact that the Deed was unrecorded during the decedent’s lifetime would have on the matter, Surrogate Messina noted that, under RPL § 291, “an unrecorded deed is void against anyone who subsequently purchases or acquires by exchange the subject property” (id.).  The Surrogate further explained that, where, as in Cruz, “there is no subsequent conveyance, the unrecorded deed remains valid, as there is no requirement of recording to transfer real property” (id.).

 As to the conclusory claim raised by the executor of the decedent’s estate – that “there [was] no proof that the covenants contained in the [D]eed were complied with” – Surrogate Messina observed that the executor made “no specific allegation that the petitioner did not comply with the covenants and conceded at oral argument that there [was] no indication that the decedent ever sent a default notice of any kind to the petitioner” (id.).  Thus, the executor’s claim was insufficient to defeat the petitioner’s summary judgment motion (id.).

Considering the record before the court, Surrogate Messina found that it was “clear from the [Deed] itself that the [decedent] intended to convey title to the [P]roperty to the petitioner” (id.).  In doing so, the Surrogate noted that the Deed (a) contained “no language . . . reserving any rights to [the decedent],” and (b) stated “several times” that the decedent “grant[ed] her rights to the [P]roperty to the petitioner forever” (id.).  Accordingly, Surrogate Messina granted summary judgment to the petition, holding that the Deed constituted “a complete and valid transfer of [the] decedent’s interest in” the Property to the petitioner (id.).            

Considering the validity of a document entitled a “Survivorship Deed” that predates New York’s transfer-on-death deed legislation, Surrogate Messina’s decision in Cruz thoroughly analyzes the validity of unrecorded deeds under New York law.  In this respect, Cruz provides a roadmap for attorneys representing clients who seek to have New York courts recognize unrecorded deeds as valid after the grantors’ deaths.