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Tenancy by the Entirety (Memo 3)

Tenancy by the Entirety

The case of Shwachman v. Meagher, 45 Mass.App.Ct. 428, 699 N.E.2d 16 (1998) contains a compilation of many cases that describe the common law attributes of a tenancy by the entirety. It is one of the most informative decisions on the topic and its handy listing of authorities makes it a good reference guide.

In Shwachman Richard and Jane Meagher held their title as tenants by the entirety, which tenancy had been created before February 11, 1980. Philip Shwachman had obtained a judgment against Richard alone. He thereafter obtained an execution and, through a sheriff's sale, acquired Richard's interest in the property. In an effort to dispose of any objection to his title based on Jane's continuing expectancy in the property, Shwachman secured a deed from Jane of her interest in the property. In an action in the superior court that revolved around the question of whether Jane's deed effectively conveyed anything to Shwachman, the court ruled that the deed was void and that Jane continued to have an expectancy in the property. On appeal the Appeals Court affirmed the decision and said:

The instant case is entirely governed by the common law, as reflected in such cases as Lowell v. Daniels, [68 Mass. 161], 2 Gray 161, 168‑169 (1854) (wife's sole deed purporting to convey her interest in real estate was "absolutely void" without her husband's joint signature, even though the husband subsequently gave his own deed to the same party: "The law has rendered her incapable of such contract . . . . Her most solemn acts, done in good faith, and for full consideration, cannot affect her interest in the estate . . . . She cannot by her own act enlarge her legal capacity to convey an estate."); Pierce v. Chace, 108 Mass. 254, 258‑259 (1871) (even when wife signed husband's deed assenting to his transfer of his interest in the tenancy by the entirety, her act was not legally binding on her nor was she equitably estopped to claim the estate upon her husband's death: "Her agreements . . . were made under a mistake as to her right of property, without fraud or intention to deceive . . . . [It was] a void conveyance of her real estate. She is not thus to be deprived of that protection which the law affords."); Phelps v. Simons, 159 Mass. 415, 417‑418, [34 N.E. 657] (1893) (under the common law, the husband could sell or transfer all of his interest in an estate by the entirety, but the utmost that the transferee could receive was the right to possession and income during the husband's life with the possibility of absolute title should the husband survive the wife; and if the wife should survive, she would be entitled to the property absolutely); Raptes v. Pappas, 259 Mass. 37, 38‑39, [155 N.E. 787] (1927) (creditor who obtained all of the debtor husband's interest in a tenancy by the entirety was entitled to immediate possession and enjoyment of the property, but nothing done by the husband alone could defeat the right of the wife to the whole estate should she survive her husband); Bernatavicius v. Bernatavicius, 259 Mass. at 487, [156 N.E. 685] ("A conveyance to a husband and wife as tenants by the entirety creates one indivisible estate in them both and in the survivor, which neither can destroy by any separate act"); Licker v. Gluskin, 265 Mass. 403, 406‑407, [164 N.E. 613] (1929) (which the Superior Court judge rightly relied upon) ("[T]he interest of the wife [in a tenancy by the entirety . . . may [not] be conveyed by her [or] attached by her creditors . . . . During coverture [the wife can] make no valid conveyance of any interest . . . [in the tenancy by the entirety] without the assent in writing of the husband. Her sole deed [is] void . . . . [T]he interest of the wife as tenant by the entirety is not during coverture subject to attachment, levy [or] sale."); Krokyn v. Krokyn, 378 Mass. 206, 211, [390 N.E.2d 733] (1979) ("[T]he wife's mere expectancy of title is neither alienable nor subject to execution . . . ."); West v. First Agric. Bank, 382 Mass. 534, 543, 545‑546 & nn. 16, 20, [419 N.E.2d 262] (1981) (reaffirming Licker v. Gluskin and noting that, for all of the modern criticisms directed at it, certain practical benefits inhered in a tenancy by the entirety, which still "made sense in common situations"); Carey's Inc. v. Carey, 25 Mass.App.Ct. 290, 295, [517 N.E.2d 850] (1988) ("Thus, generally, in 1977, any attempted conveyance of property held in a tenancy by the entirety by one tenant during the lifetime of the other was void. Both spouses had to join in a deed in order to convey the entire estate and destroy both survivorships.").

In Shwachman, it should be noted, the tenancy by the entirety under consideration was created before the enactment of Chapter 727 of the Acts of 1979, amending G.L.c. 209, §1 (effective as of , and affective tenancies created after February 11, 1980), and the court, in a footnote, said:

Substantial reforms that would conceptually support Shwachman's position, were the locus subject to a post‑February, 1980, tenancy by the entirety, were made by St.1979, c. 727, effective for tenancies created after February 11, 1980, but not for earlier tenancies by the entirety such as that of the Meaghers. See Turner v. Greenaway, 391 Mass. 1002, 1003, [459 N.E.2d 821] (1984). Under those reforms, either spouse can convey or encumber his or her interest in property held as tenants by the entirety without the other's consent. See Coraccio v. Lowell Five Cents Sav. Bank, 415 Mass. 145, 150‑152, [612 N.E.2d 650] (1993). A subsequent statute, St.1989, c. 283, codified as G.L. c. 209, Sec. 1A, gave tenants by the entirety under deeds executed prior to February 11, 1980, the right to elect to convert their tenancy to one subject to the provisions of St.1979, c. 727, through specified procedures, but the Meaghers had never done so.