Severance of Tenancy: Execution vs. Attachment
An execution seems to stand on a different footing than an attachment or other liens generally in connection with the question of the severance of a joint tenancy. Although an attachment would appear to be a mere lien placed on the property for security in connection with the collection of a debt, and would not thereby sever the tenancy under the rule announced in Weaver v. City of New Bedford, 335 Mass. 644, 140 N.E.2d 309 (1957), an execution is governed by statute. Under G.L.c. 236, §12 it is provided that
If land is held by a debtor in joint tenancy or as a tenant in common, the share thereof belonging to the debtor may be taken on execution, and shall thereafter be held in common with the co-tenant.
The Weaver court even mentioned in its decision that held that a lien for medical assistance would not sever the tenancy, that, “ [i]t is similar to an attachment of real estate by mesne process which “fixes a lien on the premises, without transferring the title or affecting the nature of the estate.” Clearly, then, an attachment will not sever a joint tenancy.
However, as to executions, the phrase “taken on execution” appears in other statutes, including G.L.c. 236, §4, which was interpreted in Still Associates, Inc.. v. Porter, 24 Mass. App. Ct. 26, — N.E.2d — (1987). What does that term mean? From this case it seems that the phrase “taken on execution” includes merely the recording of the execution and, based upon the provisions of G.L.c. 236, §12, will sever the tenancy.
If the joint tenancy is severed by reason of the recording of the execution by the sheriff then the co-tenant will not succeed to the title to the property by reason of the tenancy upon the death of the debtor. In such a case not only would the title not be complete in the survivor upon the death of the debtor, but the half interest owned by the debtor would be impressed with the execution.
1 This case was originally reported in West’s Massachusetts Decisions at 505 N.E.2d 570, but that volume indicates that it was “withdrawn from the bound volume at the request of the court,” which raises some interesting thoughts.