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Tenancies

Articles from The Massachusetts Focus

Newsletter of Stewart Title Guaranty Company, Massachusetts Offices
Spring 2008, Volume 7, Number 2

Tenancies
by Gary F. Casaly, Special Counsel

This article is a continuation of the articles that I have written in the Massachusetts Focus on intestate succession (Vol. 6, No. 2) and testamentary dispositions (Vol. 6, No. 4). Those articles, like this one, concern the passage of title upon death. In the case of tenancies there’s a nice little compact law that appears to govern all aspects of the subject. The statute is G.L.c. 184, §7. But we’ll soon find out as we start exploring the statute that within its three little paragraphs lurk trouble (that’s Trouble with a capital “T”) for the conveyancer. In fact, reading the statute may not help answer a tenancy question at all, because the statute’s provisions might not even apply! Stated another way, what you read in the statute today may not govern facts and situations that arose in the past. This means, of course, that we have to understand the history of the statute in order to know how it applied at any particular time. On top of that, the courts have made some rather startling decisions in the statute’s application. “What you see is what you get” is not the rule here!

What Does the Statute Say?

Let’s look at today’s tenancy statute and see what kind of “trouble” it might get a conveyancer into if he or she applied it indiscriminately to transactions occurring in the past as disclosed in an abstract of title.

The tenancy statute (G.L.c. 184, §7) presently provides as follows:

A conveyance or devise of land to two or more persons or to husband and wife, except a mortgage or a devise or conveyance in trust, shall create an estate in common and not in joint tenancy, unless it is expressed in such conveyance or devise that the grantees or devisees shall take jointly, or as joint tenants, or in joint tenancy, or to them and the survivor of them, or unless it manifestly appears from the tenor of the instrument that it was intended to create an estate in joint tenancy. A devise of land to a person and his spouse shall, if the instrument creating the devise expressly so states, vest in the devisees a tenancy by the entirety.

A conveyance or devise of land to a person and his spouse which expressly states that the grantees or devisees shall take jointly, or as joint tenants, or in joint tenancy, or to them and the survivor of them shall create an estate in joint tenancy and not a tenancy by the entirety. In a conveyance or devise to three or more persons, words creating a joint tenancy shall be construed as applying to all of the grantees, or devisees, regardless of marital status, unless a contrary intent appears from the tenor of the instrument.

A conveyance or devise of land to two persons as tenants by the entirety, who are not married to each other, shall create an estate in joint tenancy and not a tenancy in common.

This statute is a collection of amendments, one piled upon the other, most of which were enacted to “correct” some judicial decision that had previously been rendered. These various amendments for the most part are not retroactive, so their respective enactments would not apply to deeds and wills executed before each enactment became effective. Knowing when any particular change was made — and what the change accomplished — is crucial to the conveyancer in analyzing an abstract of the title to property.

The whole statute’s purpose, even from the very beginning, was to change the state of the law. For example, at common law the joint tenancy was preferred, but from the time of the statute’s enactment in 1785[1] tenancy in common became the preferred and presumed way in which multiple grantees or devisees would hold title. From that time on changes in the existing enactment occurred over and over again.

What “Survived” the Enactment of the Statute?

The statute read in its original raw state (when enacted in 1785) simply provided that a conveyance (except a mortgage or a deed of trust) to two or more persons would be presumed to create a tenancy in common unless apt words were used to create a joint tenancy or the “tenor of the instrument” required this result. This first primordial law did not affect mortgages and deeds of trust — they “survived” the enactment and are to this day still governed by the common law, meaning that mortgagees and trustees hold their titles as joint tenants — but the law applied to all other types of instruments. This fact is important because as multiple mortgagees (or trustees) die their interests do not pass to their heirs or devisees, but rather to their
co-mortgagees (and co-trustees). But there’s an exception to this joint tenancy rule as it applies to mortgagees. The exception is found in Park v. Parker, 216 Mass 405, 103 N.E. 936 (1914). In that case multiple owners of property who held title as tenants in common sold the property to a party who gave a purchase money mortgage back to the original owners. The mortgage was silent as to tenancy. The “default” rule that mortgagees were deemed to hold the security as joint tenants was held inapplicable under these particular facts. The court said:

The presumption is strong that they expected the note to stand in the place of the land they had sold, with like proportional interest in each. It is unlikely that as between themselves they intended that a relation so different and so speculatively uncertain in its nature as joint tenancy should be substituted for the plain and definite equal ownership of tenants in common.

The “speculatively uncertain” nature of a joint tenancy — dependent, at it is, on the fact that title will devolve to the surviving joint tenants solely based upon the order of their respective deaths — was declared in Park to be at odds with the “plain and definite equal ownership” of a tenancy in common. It seems that Park was not decided based upon the application of the tenancy statute and its presumption of tenancy in common (because mortgages are not governed by that statute), but rather on the notion that in substituting one property for another the relationship between the parties should remain the same. But no doubt the reasoning in such later cases as Pineo v. White, 320 Mass. 487, 70 N.E.2d 294 (1947) — that the tenancy statute has been consistently interpreted to mean that it is “the public policy of the Commonwealth that joint tenancies are looked upon with disfavor” — was swirling in the background of the Park decision.

Though mortgagees, if the debt is joint, will hold the mortgage jointly under the statute, it has been held that even in such a case after foreclosure, the mortgagees become tenants in common. Goodwin v. Richardson, 11 Mass. 469.

Also, it appears that assignees of a mortgage hold the mortgage as joint tenants. See Webster v. Vandeventer, 72 Mass. 428 (1856) where it is said, “Two or more joint mortgagees are joint tenants, and not tenants in common, of the mortgaged lands. So, doubtless, are two or more assignees of a mortgage, especially if the mortgage is assigned to them as trustees of a third party. Co-trustees are joint tenants. Appleton v. Boyd, 7 Mass. 131. Hill on Trustees, (2d Amer. ed.) 441, 442. Rev. Sts. c. 59 §11.” In Webster the mortgage had been assigned to two trustees of an unincorporated Society. The ruling of the court, therefore, was limited to an assignment of a mortgage to trustees; however the general statement by the court is not limited to trustees.

Regarding mortgages that are held jointly, under G.L.c. 183, §54 one of two or more joint holders of a mortgage can discharge it. The statute makes reference to “joint holders,” but the term must mean parties who hold the mortgage as joint tenants, because otherwise the word “joint” is superfluous — the phrase “one of two holders of a mortgage” would have been sufficient. Notwithstanding the statute, under Pineo v. White, 320 Mass. 487, 70 N.E.2d 294 (1947) it was held that a wife who held a mortgage with her spouse could not discharge the mortgage without the other spouse joining in the discharge because the signing spouse could not be considered a “joint holder,” for the reason that there was a unity of title between the spouses, and they would be deemed to hold the mortgage as tenants by the entirety. Now, even a discharge from a tenant by the entirety will be deemed good after the expiration of a ten-year period. G.L.c. 183 §54A. As we shall see this “unity of title between spouses” will arise in a number of other situations concerning tenancies and will in each instance gave a surprising result.

Little Words Make for Big Problems

One of the first things my father taught me when I practiced with him when I was straight out of law school was that a deed to married persons, describing them as husband and wife, followed by no words of tenancy, created a tenancy in common. He made a point of this, emphasizing that “a lot of lawyers don’t know this.” I found that this admonition turned out to be pretty true. In fact, after I joined “corporate America” as a title counsel for a title insurance company I found that a great many lawyers thought that such a deed created a tenancy by the entirety. This brings us to one of the very first amendments to the tenancy statute.

One observation about the original enactment of the tenancy statute is that the phrase “or to husband and wife” is missing from this first-enacted law. (The original enactment simply provided that a conveyance, except a mortgage or a deed of trust, to “two or more persons” would be presumed to create a tenancy in common unless apt words are used to create a joint tenancy or the “tenor of the instrument” required this result.) This is very significant and has caused the kind of confusion that my father was referring to. This phrase — “or to husband and wife” — was inserted in 1885. The reason for its insertion was on account of this “unity of title between spouses” theory. Based on the original text of the statute as enacted in the Eighteenth Century the courts were holding that a deed to a husband and wife which was silent on the tenancy would, notwithstanding the statute, create a joint tenancy between those parties (which as we shall see was converted to a tenancy by the entirety) because a husband and wife were not “two persons,” but in law only one. Since the original statute in changing the common law referred and applied to “two or more persons” it was deemed by these early courts not to be applicable to deeds to married couples, resulting in the common law remaining applicable to such conveyances and thus creating a joint tenancy (and its concomitant conversion to a tenancy by the entirety). But this result was changed by reason of the amendment in 1885, so since that time a deed to a married couple where no other tenancy is specified will create a tenancy in common, just as it originally would with respect to unmarried couples. This fact seems sometimes to be misunderstood — with the assumption on the part of some conveyancers that a deed to a married couple will always create a tenancy by the entirety. It will not (at least after 1885) if the instrument is silent on the issue.

This is probably an opportune time to discuss tenancies by the entirety generally. Such tenancies are in fact joint tenancies between married persons, but have some very peculiar attributes. Whenever I discuss tenancies by the entirety I always start with my favorite quote on the subject. In King v. Greene, 30 N.J. 395, 153 A.2d 49 (1959) Chief Justice Weintraub had this to say:

It rests upon the fiction of oneness of husband and wife. Neither owns a separate and distinct interest in the fee; rather each and both as an entity own the entire interest. Neither takes anything by survivorship; there is nothing to pass because the survivor always had the entirety. To me the conception is quite incomprehensible.

Incomprehensible, for sure! It is because of this “oneness of husband and wife” (with, at common law, the husband being the one) that our early courts had ruled that the “two or more person” phrase in the tenancy statute didn’t apply to married persons. But the enigma gets even more interesting. Until the relatively recent (1980) amendment to G.L.c. 209, §1 tenancies by the entirety took on a life of their own in the legal arena of conveyancing. Under the historical form of the tenancy by the entirety the wife had nothing more than an expectancy. That is, she had a “hope” that she might succeed to the title if her husband predeceased her. This expectancy was not something her creditors could get to nor was it something that she could deal with herself. In Shwachman v. Meagher, 45 Mass.App.Ct. 428, 699 N.E.2d 16 (1998), which is a case that reads like the Encyclopedia Britannica on the subject of the traditional tenancies by the entirety (what my father would have described as “required reading”) Richard and Jane Meagher held their title as tenants by the entirety, which tenancy had been created before the 1980 statute. 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. (He would not have been successful if his execution was against Jane, since she had only an “expectancy.”) 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 because Richard her husband had not joined in the deed.

Under the “new” (1980) statute the result probably would have been different, and the court alludes to this: since the 1980 amendment now put both married couples on a equal footing, being able to give a deed of their respective expectancies, the other spouse did not have to join.

Being permitted to convey an expectancy in a tenancy by the entirety does not translate into being able to sever the estate of terminate or otherwise affect the other parties’ expectancy, or even convey the fee title. Chief Justice Liacos summed up this concept quite nicely in Coraccio v. Lowell Five Cents Savings Bank, 415 Mass. 145, 612 N.E.2d 650 (which was cited in Shwachman), when he wrote:

The [new] statute did not, however, alter the characteristics of the estate itself. Merely because each spouse is “equally entitled to the rents, products, income or profits and to the control, management and possession of property held by them as tenants by the entirety,” it does not follow that each has an equal one half interest in the property. On the contrary, a tenancy by the entirety remains a unitary title, and the statute simply guarantees each spouse an equal right to the whole. Whatever the husband could do at common law, the wife now may do as well. Each spouse continues to have a indestructible right of survivorship, and the estate remains inseverable and not subject to voluntary partition. (Citations omitted.)

Nonetheless, either spouse may convey or encumber his or her interest in property held as tenants by the entirety. * * *.

[A grantee from one of the spouses], could acquire [an] interest in the property, namely a right wholly defeasible should the [other] nondebtor spouse, survive him.

So, the tenancy by the entirety has gone through a metamorphosis over the years. As I indicated at the beginning of this article, because the rules keep changing the target keeps moving, and it’s important to know the history of the statute and its effect upon the tenancy by the entirety — and the other tenancies as well — at any particular moment in time.

It should be noted at this point that tenancies by the entirety can now be created between same-sex married couples. Goodridge v. Department of Public Health, 440 Mass. 309, 798 N.E.2d 941 (2003). One might think that in light of Goodridge the legislature would have by now substituted a phrase like “two persons who are married to each other” for the original phrase “husband and wife.” But it seems obvious that this original phrase will be interpreted to include such couples, but interestingly enough all other phrases in the statute when used to describe the relationship between, or the tenancy that will be created on account of the married or unmarried status of persons, employ more general descriptive language (a devise to a “person and his spouse” as tenants by the entirety will create such a tenancy; a conveyance or devise “to a person and his spouse” that designates a joint tenancy will create such a relationship; a conveyance or devise “to two persons as tenants by the entirety” who are not married to each other will create a joint tenancy). 

Just Go Ahead and Say It!

To overcome the statutory presumption of tenancy in common various combinations of words must be used or the “tenor of the instrument” must show the intention to create a joint tenancy. The words that can create a joint tenancy include a statement in the deed or will that the grantees shall take:

  • Jointly
  • As joint tenants
  • In joint tenancy
  • To them or to the survivor of them

In addition to using these phrases a joint tenancy can be created under the statute if it “manifestly appears from the tenor of the instrument” that a joint tenancy was intended. What does this provision mean? Let’s take an example. In Morris v. McCarty, 158 Mass. 11, 32 N.E. 938 (1893) a deed ran to two unmarried persons as "tenants by the entirety and not as tenants in common." The court stated that since the parties could not hold as tenants by the entirety (they weren’t married to each other), and since the deed excluded the possibility of title being held as tenants in common (the deed contained the phrase “and not as tenants in common”), the only remaining option, a joint tenancy, would arise. The court said:

On looking at the deed under which the tenant claims, it is quite plain that the grantors intended to create an estate in joint tenancy, as distinguished from an estate in common. The particular form of estate in joint tenancy which they contemplated fails; but they took great pains to exclude the idea of an estate in common, and the effect of the deed is to create an estate in joint tenancy, without the special feature of an estate in entirety.

Don’t Believe Everything You Read

One would think from the Morris case that a deed to two persons as “tenants by the entirety” when they are not married to each other would create a joint tenancy. And, in fact, today’s statute says just that: “A conveyance or devise of land to two persons as tenants by the entirety, who are not married to each other, shall create an estate in joint tenancy and not a tenancy in common.” But this is where the history of the statute and the case law that inspired the various amendments becomes important. Under G.L.c. 184 §7, before it contained the language quoted above, it was decided in Fuss v. Fuss (No. 2), 373 Mass 445, 368 N.E.2d 276 (1977) that a deed to two persons as tenants by the entirety who were not married to each other would vest them with title as tenants in common. The logic was (i) the law presumes a tenancy in common, (ii) a joint tenancy can be created only with specific language stating that the parties are to hold jointly and (iii) a tenancy by the entirety can be held only as between married persons. The language employed in the deed in Fuss was “tenants by the entirety,” and the court concluded that since the parties were unmarried they could not hold that way, and that since the deed did not specifically call for a joint tenancy they could not hold that way either. That left tenancy in common as the only option. The distinction between the Fuss and Morris decisions was that the deed being construed in the latter case contained the phrase “and not as tenants in common,” while that language did not appear in the deed that the Fuss court was examining. Of course, the statute changes all this and creates a joint tenancy between unmarried persons when they are described as tenants by the entirety, but only as to conveyances and devises after the effective date of the amendment. The amendment, which was in response to the Fuss decision, was engrafted on the statute in 1979. Conveyances before then are governed by Fuss or Morris, depending upon the language used in the instrument. 

Where There’s A Will . . .

Sometimes it makes a difference where and in what instrument supposed joint tenancy language appears. In Cross, v. Cross, 324 Mass. 186, 85 N.E.2d 325 a devise in a will to “my son Thomas . . . and to my son William . . . share and share alike, or to the survivor of them” was deemed to create a tenancy in common. The court said:

[The respondents] argue that the testator’s words are appropriate for the creation of a joint tenancy, and that at [the testator’s] death Thomas and William became vested with a remainder as joint tenants. We cannot adopt this argument. To begin with, the expression ‘share and share alike,’ standing alone, would create a tenancy in common. [Citations omitted.] The general principal being that a will speaks as of the time of the testator’s death, [citations omitted] we think that the purpose of the later words ‘or to the survivor of them’ was to provide for the contingency where only one son might be living at that time. In such case the surviving son was to take all. 

As the court pointed out in Cross, the will speaks as of death and that in such a case the phrase “or to the survivor of them” was to provide for the contingency where only one devisee might be living at the time of the testator’s death.[2]

Wills, of course, can create tenancies by the entirety, joint tenancies or, as happened in Cross, a class gift. Wills, of course, do not operate on existing tenancies by the entirety or joint tenancies because the property held as such is not probate property and therefore not affected by the provisions of the will. But what happens, in the case of a death, where both of the tenants by the entirety or joint tenants died simultaneously, and there’s no evidence to determine who died first? How is the property distributed? G.L.c. 191A, §3 addresses this:

Where there is no sufficient evidence that two joint tenants or tenants by the entirety have died otherwise than simultaneously the property so held shall be distributed one half as if one had survived and one half as if the other survived. Where more than two joint tenants have died and there is no sufficient evidence that they died otherwise than simultaneously the property so held shall be divided into as many equal shares as there were joint tenants and the share allocable to each shall be distributed as if he had survived all the others.

Getting To Basics — and Antiquity

I don’t want to get too esoteric, but I do want to note something that goes to the core of joint tenancy. This is the concept of Unities of Title. There are four of them (thus sometimes referred to the Four Unities) and they must all exist in order for a joint tenancy to be created. These unities are as follows:

  • The Unity of Time. This means that all joint tenants must acquire their title at the same time, under the same instrument. There is one statutory exception to this, and I’ll discuss that in a moment.
  • The Unity of Title. This means that the interest (fee title, life estate, etc.) must be of the same quality as to each tenant. You can’t have a joint tenancy consisting of a fee simple remainder and a life estate.
  • The Unity of Interest. This means that each tenant must have an interest that is equal to that of all other tenants. You can’t have one tenant with a three-quarters interest and the other with a one-quarter interest.
  • The Unity of Possession. This means that all tenants must have the right to possess the whole estate.

Perhaps these unities are outmoded and obsolete, but the fact remains that they still govern joint tenancies.

One of the Unities Dies on the Vine

There is one exception to the Four Unities, and it is contained in G.L.c. 184, §8. It says:

Real estate, including any interest therein, may be transferred by a person to himself jointly with another person in the same manner in which it might be transferred by him to another person, and a conveyance of real estate by a person to himself and his spouse as tenants by the entirety shall create a tenancy by the entirety.

Without the benefit of this statute a person who owned property and wanted to create either a joint tenancy therein between himself and another person or a tenancy by the entirety with his spouse would have to use a “straw” (third party) to take title and then reconvey it accordingly. At common law, without the intervention of a “straw” in such case, the Unity of Time would be violated: since the grantor already owned an interest in the property the new person to be added to the title would necessarily take his or her interest therein at a different time than the original grantor, thus violating the unity, which would result in the creation of a tenancy in common. The statute makes for a “shorthand” way of effectuating the conveyance and creates the joint tenancy or tenancy by the entirety even though the Unity of Time is not observed. The statute governed the creation of a joint tenancies (only) from 1918 to 1954 and covered tenancy by the entirety as well from and after 1954.

Watch your Punctuation

The courts have taken the tenancy statute seriously, so seriously, in fact, that the various amendments to the statute have been enacted in an effort to add some reasonableness to its application. For example, in Fulton v. Katsowney, 342 Mass. 503, 174 N.E.2d 366 (1961), where the court was asked to interpret a deed that ran to “James C. Miller, being unmarried, and Dimitri Katsowney and Elfena Katsowney, his wife, as joint tenants and not as tenants in common,” it concluded that the words “joint tenants” applied only to Dimitri and Elfena, the last two named grantees, leaving James to be a tenant in common. The court said:

As a matter of syntax, the words “as joint tenants and not as tenants in common” are applicable to all three grantees or only to Dimitri and Elfena Katsowney. In determining the intent of the grantors we are not assisted by evidence of the circumstances or the mutual relation of the grantees. Certainly it does not “manifestly appear . . . from the tenor of the instrument” that it was intended to extend the estate of joint tenancy in the Katsowneys to include Miller. In such case we are compelled to rely on the statutory presumption to resolve the problem of construction. It leads us to conclude that the deed conveyed a one half interest in the property to Miller to be held as tenant in common with the respondents. 

We’re Going into Overtime

What the court was saying in Fulton was if there is a “toss-up” or a “tie” — where the syntax of the sentence can be read either way — it was “compelled” to rely upon the “statutory presumption” of tenancy in common. This kind of decision prompted an amendment to the statute in 1973. It is contained in the second paragraph of the statute:

In a conveyance or devise to three or more persons, words creating a joint tenancy shall be construed as applying to all of the grantees, or devisees, regardless of marital status, unless a contrary intent appears from the tenor of the instrument.

Between the time of the Fulton decision in 1961 and the amendment in 1973 the decision in Fekkes v. Hughes, 354 Mass. 303, 237 N.E.2d 19 (1968) was rendered. In Fekkes a deed that listed multiple grantees and then added the phrase “all as joint tenants” after the listing of their names was interpreted to create a joint tenancy as to all of the named grantees, not just the last two. The court cited Fulton and noted that in that case there was an “ambiguity” as to what the words “joint tenants” modified, but in the deed in Fekkes there was no ambiguity because the word “all” discounted it.

The Fekkes court discussed another issue concerning tenancies which, just like the issue then before it, was not the subject of a “corrective” amendment until 1973. The deed in Fekkes actually ran “Harold B. Hughes and Dorothy Ann Hughes, husband and wife, and Harry Fekkes and Dorothy D. Fekkes, husband and wife, all as joint tenants.” The law in effect at the time Fekkes was decided was that a deed to a husband and wife as joint tenants would vest them as tenants by the entirety (the joint tenancy between the married persons would be “converted” to this kind of martial tenancy). The court acknowledged the tenet of law but held that it was inapplicable because “the use of the word ‘all’ expressed an intent that the joint tenancy should exist without qualification between all of the grantees” and did not create two separate tenancies by the entirety. This was an important issue in Fekkes because the case involved the partition of land. A tenancy by the entirety can not be partitioned (see G.L.c. 241 §1), while a joint tenancy could. In 1973 the statute was amended to provide that:

A conveyance or devise of land to a person and his spouse which expressly states that the grantees or devisees shall take jointly, or as joint tenants, or in joint tenancy, or to them and the survivor of them shall create an estate in joint tenancy and not a tenancy by the entirety.

This amendment, once passed, prevented the operation of the common law rule that would otherwise “convert” a joint tenancy between married persons into a tenancy by the entirety. Again, however, the statute is not retroactive. 

Watch It! It’ll Break!

After the creation of a joint tenancy or a tenancy by the entirety certain events can occur that can destroy the tenancy. In the case of a tenancy by the entirety no act by one spouse alone can sever the tenancy and there are only a few ways that the tenancy can be broken or destroyed:

  • Divorce. Because a tenancy by the entirety depends upon the existence of a valid marriage, a divorce will “sever” the tenancy and transform it into a tenancy in common. Bernatavicius v. Bernatavicius, 259 Mass. 486, 156 N.E. 685 (1927). In Bernatavicius the court dismissed the notion that a joint tenancy would be created upon the divorce of persons who had held as tenants by the entirety:

    Joint tenancy and its doctrine of survivorship are not in harmony with the genius of our institutions, nor are they much favored in law. Burnett v. Pratt, 22 Pick. 556.

    Our statutes tend in the same direction. Express words are necessary in a deed or devise (except as to trusts) to create a joint tenancy. G. L. c. 184, §7. These considerations lead us to the opinion that the operation of a divorce of the parties upon a tenancy by the entirety creates a tenancy in common.

    An interesting fact, which the Bernatavicius had no opportunity to comment on at the time, is the amendment to the statute which was thereafter enacted. As noted previously, under the amendment a deed to two persons as tenants by the entirety who are not married to each other creates a joint tenancy. So, the question remains judicially unanswered whether after the amendment a divorce would result in converting a tenancy by the entirety into a joint tenancy, rather than a tenancy in common. However, I do not believe that this statutory change would affect the result reached in Bernatavicius. The statute is phrased in terms of “a conveyance to” persons as tenants by the entirety “who are not married to each other,” and provides that such a conveyance “create[s]” a joint tenancy. It is the “conveyance” that “creates” the joint tenancy, not the change in circumstances or relationship of the grantees.
  • Conveyance by one spouse to another. In Bernatavicius the court was concerned with the effect of a divorce upon a tenancy by the entirety. However, there is a statement in the opinion that such a tenancy would be destroyed by deed of both parties “or possibly of one party directly or indirectly to the other.” Clearly, both spouses could join in a conveyance to one of them, but it was not clear, at least from the Bernatavicius opinion, as to whether the same result would be obtained if just one of them conveyed to the other. However, in Hale v. Hale, 332 Mass 329, 125 N.E.2d 142 (1955) the court in fact ruled that such a conveyance from one spouse to the other would “collapse” the tenancy and place all title in the grantee-spouse.

A joint tenancy, unlike a tenancy by the entirety, can be severed by the act of any one party and third parties can cause a severance too. (A divorce, which will sever a tenancy by the entirety, will not sever a joint tenancy, because such tenancy does not depend upon the marital relation between the parties.) Some of the events that will sever a joint tenancy are these:

  • Voluntary conveyance by a co-owner. A tenant by the entirety cannot sever such a tenancy by his or her act alone. A conveyance not joined into by the other spouse (except for a conveyance by one spouse to the other) will not shatter the tenancy, but a conveyance by a co-owner who holds in joint tenancy with one or more other persons will sever that party’s interest with regard to the other joint tenants. (If there are three or more joint tenants the severance will occur only in relation to the tenant who has conveyed and the remaining joint tenants; the joint tenancy between the remaining joint tenants will be unaffected.) An outright deed is the most obvious vehicle by which the tenancy can be severed, but there are other methods as well. For example, the granting of a mortgage by one co-tenant will sever the joint tenancy.
  • Involuntary conveyance by co-owner. A sheriff’s sale or a partition will sever a joint tenancy.
  • Execution. G.L.c. 236 §12 provides that if land is held by a debtor in joint tenancy, the share thereof belonging to the debtor may be taken on execution, and shall thereafter be held in common with the co-tenant. The statute uses the term “taken on execution” as being the event that severs the tenancy. What this term means — whether it be simply the recording of the execution or the sale thereunder — is not defined, but it is axiomatic that a sale by the sheriff pursuant to a deed to a purchaser will sever the joint tenancy. It seems, therefore, that the statute is contemplating simply the recording of the execution as being the trigger which severs the tenancy and causes the debtor and the other tenants to be regarded as tenants in common. Moreover, 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, 508 N.E.2d 621 (1987). From this case it seems that the phrase “taken on execution” includes merely the recording of the execution.

    An attachment, as opposed to an execution, would appear not to sever a joint tenancy. An attachment is merely a lien placed on the property for security in connection with the collection of a debt. In applying the rule in Weaver v. City of New Bedford, 335 Mass. 644, 140 N.E.2d 309 (1957) by analogy, this seems to be the result. In Weaver it was decided that, unless otherwise required by statute, 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. An attachment seems to be on the same footing.

Knowing what the law is concerning tenancies is important. But just as important is knowing when the laws were effective. Keeping track of when laws that affect tenancies are passed and what happens after a tenancy is created will keep you out of trouble – that’s the Trouble I was talking about; the one with the capital “T.”

1 The first enactment was in 1783 and it provided that “the principal of survivorship shall no longer be in force in this commonwealth,” but the 1785 enactment rescinded the original law and modified its result by creating a presumption of tenancy in common rather than an outright elimination of joint tenancy. [Back to Text]

2 The phrase “share and share alike” appears in the will in Cross. However, the court’s comment (“[t]o begin with, the expression ‘share and share alike,’ standing would create a tenancy in common”) is to emphasize the fact that the phrase in no way could be interpreted to create anything other than a tenancy in common — something that would be created by silence, without the phrase at all. Even where there is a “toss-up” the court has told us that “we are compelled to rely on the statutory presumption [of tenancy in common] to resolve the problem of construction.” Fulton v. Katsowney, 542 Mass. 503, 174 N.E2d 366 (1961), discussed later. [Back to Text]