Thomas Bennett Real Estate Lawyer Boston MA

Wednesday, June 27, 2012

Know Your Tenancies

by Thomas V. Bennett

One of the first decisions a couple makes when they first buy real estate is how to take title. There are basically four ways that a couple can hold title. One is as tenants in common, the result of which is that if one of the parties dies, that party's interest in the real estate would pass to that party's heirs at law or whoever that party left it to under that party's will; if they take title as joint tenants and one of them should die, title would pass by operation of law to the other joint tenant; if they take as tenants in partnership and one of the partners dies, the other partner takes title to the real estate but has an obligation to account to the deceased partner's estate the value of the real estate obtained by the living partner; the final way to take title is tenancy by the entirety which is only available to husbands and wives.
With respect to the first three tenancies, any creditor of either of the couple could attach that person's interest in the real estate and if they were successful in the litigation and got an execution, they could then levy on the real estate, cause it to be sold at a sheriff's sale, and then after title ripened (a year after the sale), they could bring a suit in the Probate Court to partition the property which means they could force a sale and thereby obtain the interest of the party they sued.
A tenancy by the entirety had, prior to May 19, 2004, only been available to husband and wife. That tenancy's special provisions intended to make real estate less available to the creditors of the husband and wife. That interest of the husband and wife in a tenancy by the entirety could not be reached by a creditor with a levy with an execution although it could be attached unless the debt was owed by both the husband and wife or the debt was for “necessities.” Virtually all couples who purchased a home would take title in that manner because of those special protections.
The Supreme Judicial Court decision allowing gay marriage has now made tenancy by the entirety available to gay couples who are married.
All land in the Commonwealth is either recorded or registered land. Registered land is a system of title maintenance by the Land Court of the Commonwealth of Massachusetts which has statewide jurisdiction. On May 6, 2004, the Chief Examiner of the Land Court issued a memorandum to all of the registry districts with respect to tenancy by the entirety. The memorandum instructs the assistant registrars not to conduct any investigation or require any proof of marriage when accepting a deed of two individuals as “tenants by the entirety” and that is so whether or not the two individuals are or are not or appear from their names to be or not to be either of the same sex or of the opposite sex. Furthermore, the document establishing title need not refer to the two individuals as being married.
Accordingly, gay and homosexual couples who in the past had only the alternatives of joint tenants, tenancy in common or tenancy in partnership, now have (if they are married) another option and should consider, after marriage, changing their tenancy to a tenancy by the entirety.
This is another example of how the Supreme Judicial Court decision has helped gay and lesbian couples avoid discrimination that previously favored only straight couples.


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