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History of Tenancy by the Entirety

Tenancy by the Entirety

G.L.c. 184, §7 states:

A conveyance or devise of land to two or more persons or to husband and wife . . . shall create an estate in common and not in joint tenancy . . . . (Emphasis added.)

It is suggested by counsel that the phrase "or to husband and wife" was not meant to change the common law rule creating a tenancy by the entirety where a husband and wife alone take title to property, but rather that the language was inserted to govern the situation where two unmarried persons or one or more persons and a husband and wife (considered at common law to be one person) take title to real estate in a form other than joint tenants. In other words, the phrase "or to husband and wife" is meant to describe and be a substitute for a "person" who takes title along with other parties, when that "person" is a husband and wife, and that the language does nothing to change two common law rules that require this result that presumed a tenancy by the entirety between married persons when they alone took title.

The argument is interesting, albeit novel. The common law rules upon which it rests are that (1) a husband and wife were at law treated as one person and (2) a deed to them without other controlling language would create a tenancy by the entirety. Both propositions are correct, but the argument based upon them, although not without merit, does not in my view follow. The argument is that the quoted portion of the statute speaks in terms of a deed to multiple persons "creat[ing] and estate in common and not in joint tenancy." The argument here is that if the legislature intended to abolish the common law rule regarding the presumption of a tenancy by the entirety between married persons it would have mentioned both tenancies in this sentence. That is, if the legislature set out to alter both presumptions (joint tenancy between unmarried persons and the tenancy by the entirety between married persons) one would suppose, the argument goes, that the statute would have been drafted to address both tenancies.

The argument sounds convincing, but it has a weak link. For, although a deed to a "husband and wife" would at common law create a tenancy by the entirety, the tenancy has been described as "essentially a joint tenancy modified by the common-law doctrine that husband and wife are one person." Hoag v. Hoag, 213 Mass. 50, 99 N.E. 521 (1912). Since married persons, as one unity, could not hold separate "moieties," a necessary ingredient to a common law joint tenancy, the law considered that they held a special type of joint tenancy, a tenancy by the entirety, but a joint tenancy nonetheless. It was said in Morris V. McCarthy, 158 Mass. 11, 32 N.E. 938 (1893):

An estate in entirety is an estate in joint tenancy, but with the limitation that during their joint lives neither the husband nor the wife can destroy the right of survivorship without the assent of the other.

The Morris court did not state that a tenancy by the entirety was "like" a joint tenancy; it said that a tenancy by the entirety "is an estate in joint tenancy." So, if the statute prevented the theretofore preferred joint tenancy from arising in favor of a tenancy in common, it therefore would effectively prevent the tenancy by the entirety from arising where specific language creating it did not appear in the deed. That is, where the statute prefers a tenancy in common over a "joint tenancy," the term "joint tenancy" would include a tenancy by the entirety, a special type of joint tenancy between husband and wife.

One last point in the argument is this: that a "proposed amendment" (House Bill 1496) "would have" construed a deed "to husband and wife" as creating a tenancy by the entirety. The proposed amendment provided:

A deed to two or more persons, including a deed to husband and wife, whether or not one of them be a grantor therein, or a mortgage to two or more persons, whether or not one of them be a grantor therein in which the words "as joint tenants" follow the names of the grantees in the granting clause, shall create a joint tenancy, and a deed to husband and wife, whether or not one of them is a grantor therein, or a mortgage to husband and wife, in which the words "husband and wife" follow the names of the grantees in the granting clause, shall create a tenancy by the entirety, if they are married to each other.

It is speculated that this proposed amendment "would have construed" the existing law as to the creation of a tenancy by the entirety when only the designation of "husband and wife" followed the names of married persons. That may be correct, but the point here is that the amendment was not (as far as I'm aware) ever passed in the aforementioned form. There's a suggestion that the proposed amendment "was intended to clarify" the law. I would disagree. The amendment would have changed the law. For this reason the argument is weak, a bit misdirected and should be avoided.