Monday, May 05, 2014

Tenancy by the Entirety Election

A recent email caused me to dust off my recollection of the distinction between “old” and “new” tenancies by the entirety.  Here’s the gist of the email:

Maybe 20 or 30 years ago there was an article in the Boston Globe about a new  law which took care of the following situation: A married couple owns a house, but they were just listed as tenants in common, not tenants by entirety.  At that stage of the game, the only way to rectify the ownership would be to sell the house to a "straw", and then have the straw immediately sell the house back to the couple, by entirety.  The law was enacted to allow the couple to simply fill out a declaration with the Registry (probably similar to homestead), instead of going through the selling and buy-back.  Can you tell me the name of the form?

Here’s my answer:

I think you're mixing up two concepts related to spousal ownership of property.

The law regarding property held as Tenants by the Entirely changed significantly in 1979.  Prior to that, the wife was deemed to have no ownership interest in the property other than the expectation that she might outlive her husband and only then become the owner.  The change in 1979 modernized the concept by giving both spouses equal ownership rights in the property while both were alive while also retaining the right of survivorship.  Which law controlled depended on when the Tenancy by the Entirety had been created.  If before 1979, the old law controlled; if after, the new law controlled.  It was in that context that the legislature enacted MGL c. 209, s. 1A which allowed a married couple with a pre-1979 tenancy by the entirety to "elect" to have it treated as a post-1979 tenancy by the entirety simply by filing an "election" document at the registry of deeds.  Here's the text of the statute:

"Section 1A. Tenants by the entirety holding under a deed dated prior to February eleventh, nineteen hundred and eighty may elect to have their tenancy treated as being subject to the provisions of chapter seven hundred and twenty-seven of the acts of nineteen hundred and seventy-nine; provided, however, that such election is made in writing, identifying the real estate with reference to the book and page of the registry of deeds wherein such deed is filed. Such election shall be executed by the grantees named as tenants by the entirety on the deed who are electing to be subject to this section, duly notarized, and recorded in said registry."

The second concept you refer to is the use of a straw.  Formerly, it was not permitted for someone to transfer property to himself.  If I owned property by myself, got married, and wanted to make my spouse a co-owner of the property, I could not execute a deed from me to me and my spouse.  Instead, I had to convey the property to a straw who in turn would convey the property to me and my spouse (my property professor in law school used to joke that the grantor index at the Suffolk County Registry of Deeds made Mary Maguire look like the wealthiest land owner in Boston, but that was just because she was secretary to the busiest real estate lawyer and she was grantor on countless straw deeds). 

At some point - certainly before the mid-1980s, either the law or the practice changed and it became acceptable to convey property to yourself.  Consequently, the use of straw deeds is extremely rare these days. 

There is a statute, c.209, s.3, which does mention property transfers between spouses ("Section 3. Transfers of real and personal property between husband and wife shall be valid to the same extent as if they were sole.") but I think the evolution of conveyancing law applied to all cases and not just married couples. 

I would think that if a married couple today owned property as tenants and common and wanted to convert to tenants by the entirety, the only way to do that would be to execute a deed from themselves to themselves specifying the new tenancy.  There may be another way; I'm just not aware of it.  In any case, it's something you should hire a lawyer to do for you so that lawyer would be in the best position to provide legal advice in your case.

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