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Serving
Massachusetts Agencies

Severance of Tenancy

Joint Tenancy

It was decided in Weaver v. City of New Bedford, 335 Mass. 644, 140 N.E.2d 309 (1957) that, unless otherwise required by statute (see the memo, Severance of Tenancy: Execution, in Joint Tenancy) , the recordation of a lien will not effectuate the severance of a joint tenancy. In Weaver the issue was the effect of the recording of an old age lien on a joint tenancy. The government insisted that the lien could be enforced against the land in the hands of the surviving joint tenant; the trial court held otherwise and the government appealed The court affirmed, and gave the following reasoning for its decision:

As in other cases of statutory lien the present lien appears designed to effectuate a charge on real estate for the satisfaction of an obligation, the general property remaining in the debtor. [Citations omitted.] It 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.” Freeman v. McGraw, 15 Pick. 82, 84. Gardner v. Barnes, 106 Mass. 505, 507.

The ruling in the case sheds some light on what kind of encumbrances will (and will not) sever a joint tenancy. Absent some other statutory provision (see the memo, Severance of Tenancy: Execution, in Joint Tenancy), severance seems to require some “transferring [of] the title” in order to break the survivorship feature of the joint tenancy. The mere recording of a lien that merely “fixes a lien” without effectuating such a transfer of title would appear not to cause a severance.

The case of Henderson v. Yarmouth, 335 Mass. 647, 141 N.E.2d 518 applied the rule announced in Weaver.

A tenancy by the entirety will be severed or dissolved by a divorce; but if the property is held by the couple in joint tenancy a divorce will not affect it.

Even a lien that may transfer title, if filed against both parties would appear not to create a severance and would not disturbed the title of the owners as joint tenants (much like the granting of a mortgage by both joint tenants would not effect a destruction of the joint tenancy). In such a case the release back to the owners would not be their source of title, but rather would simply be the relinquishment of the lien.

Speaking of sources of title, attention must be paid to that issue when it comes to the creation of a joint tenancy. For example if A and B have inherited property and A conveys to himself and B “as joint tenants,” the half interest that A conveyed will truly be held by the two as joint tenants, but B will still have title in his own right to the half interest he originally inherited. So, although the death of A will vest full title in B, the death of B will not vest full title in A. There are many other variation on this, which should be carefully scrutinized.