On September 1, 1974 the age of majority was changed from twenty one years to eighteen years (General Obligations Law section 3-101). As a result, any person under the age of eighteen is deemed to be a minor and, under Real Property Law Section 11 is precluded from transferring an indefeasible estate or interest in real property.
A purchase or conveyance made by a minor is not void, but is voidable at the minor’s option after reaching the age of majority. The minor can disaffirm the transaction even if the property was re-conveyed to an innocent purchaser. Under Civil Practice Law and Rules Section 208 the minor’s right to disaffirm a transaction is capped to within three years after reaching the age of majority. Nevertheless, the minor must disaffirm the transaction within a reasonable time after reaching the age of majority because a failure to do so will be deemed an affirmance of the transaction (Beardsley v. Hotchkiss, 96 N.Y. 201 (1884)).
Married minors are an exception to the rule of voidability. Under General Obligations Law Section 3-101(3), a husband and wife, both of whom are minors, have the power to acquire, mortgage or transfer real property occupied or intended to be used as a home.
To avoid the possibility that the minor might disaffirm the transaction, the conveyance must be made pursuant to a court order. Once a conveyance is made pursuant to a properly obtained court order, a minor cannot disaffirm the conveyance. Proper court authorization can be obtained in either surrogate’s court under Article 17 of the Surrogate’s Court Procedure Act, or alternatively, in the supreme or county court under Article 17 of the Real Property Actions and Proceedings Law.
In surrogate’s court, the application must be made by a court appointed guardian and it must be made to the surrogate’s court of the county that appointed the guardian. In supreme or county court, the petition can be made by the minor’s guardian, by any relative or other person on behalf of the minor, or by a minor 14 years or over in the minor’s own behalf. If the petition is made by someone other than the minor and the minor is 14 years or older, then the minor must join in the petition. Regardless of which procedure is used, it is important to remember that the transaction itself must be approved by a court order. It is not enough that a guardian is appointed to manage the affairs of the minor. Although a guardian typically has broad powers, he may not sell the minor’s property without specific court approval.
Once the transaction is approved, the proper party to the deed is the minor but the guardian executes the deed on behalf of the minor in the following manner:
S/ John Minor
By: S/ Joe Guardian
Guardian of John Minor, as minor
If the real property is held by a custodian for a minor under the Uniform Gifts to Minors Act or, if after September 3, 1997, under the Uniform Transfers to Minors Act (Estates, Powers and Trusts Law “EPTL” Section 7-6), then the custodian can transfer the property without first obtaining court approval. “A custodian, acting in a custodial capacity, has all the rights, powers, and authority over custodial property that unmarried adult owners have over their own property, but a custodian may exercise those rights, powers, and authority in that capacity only”(EPTL Section 7-6.13).
The prior deed into the custodian must specifically recite that the property was conveyed to the custodian pursuant to the Uniform Gifts to Minors Act, or if after September 3, 1997, pursuant to the Uniform Transfers to Minors Act (EPTL Section 7-6.9(a)(5)).