Chapter 5 - EXHIBIT 5A • TENANCY BY THE ENTIRETY

• Jurisdiction: Colorado

EXHIBIT 5A • TENANCY BY THE ENTIRETY

TENANCY BY THE ENTIRETY

Tenancy by the Entirety at English Common Law

Blackstone discusses tenancy by the entirety (although not so designating it) under the heading "Of Estates in Severalty, Joint-Tenancy, Coparcenary, and Common," as follows:

We come now to treat of estates, with respect to the number and connexions of their owners, the tenants who occupy and hold them. And, considered in this view, estates of any quantity or length of duration, and whether they be in actual possession or expectancy, may be held in four different ways; in severalty, in joint-tenancy, in coparcenary, and in common.
. . . II. An estate in joint-tenancy is where lands or tenements are granted to two or more persons, to hold in fee-simple, fee-tail, for life, for years or at will. In consequence of such grants an estate is called an estate in joint-tenancy, and sometimes an estate in jointure, which word as well as the other signifies an union or conjunction of interest. . . .

In unfolding this title, and the two remaining ones, in the present chapter, we will first inquire how these estates may be created; next their properties and respective incidents; and lastly, how they may be severed or destroyed.

1. The creation of an estate in joint-tenancy depends on the wording of the deed or devise, by which the tenants claim title: for this estate can only arise by purchase or grant, that is, by the act of the parties, and never by the mere act of law. Now if an estate be given to a plurality of persons, without adding any restrictive, exclusive, or explanatory words, as if an estate be granted to A and B and their heirs, this makes them immediately joint-tenants in fee of the lands. For the law interprets the grant so as to make all parts of it take effect, which can only be done by creating an equal estate in them both. As therefore the grantor has thus united their names, the law gives them a thorough union in all other respects. For,

2. The properties of a joint estate are derived from its unity, which is fourfold; the unity of interest, the unity of title, the unity of time, and the unity of possession; or, in other words, joint-tenants have one and the same interest, accruing by one and the same conveyance, commencing at one and the same time, and held by one and the same undivided possession.
. . .
Lastly, in joint-tenancy there must be a unity of possession. Joint-tenants are said to be seised per my et per tout by the half or moiety, and all: that is, they each of them have the entire possession, as well of every parcel as of the whole. They have not, one of them a seisin of one-half or moiety, and the other of the other moiety; neither can one be exclusively seised of one acre, and his companion of another; but each has an undivided moiety of the whole, and not the whole of an undivided moiety. And therefore, if an estate in fee be given to a man and his wife, they are neither properly joint-tenants, nor tenants in common: for husband and wife being considered as one person in law, they cannot take the estate by moieties, but both are seised of the entirety, per tout, et non per my: the consequence of which is, that neither the husband nor the wife can dispose of any part without the assent of the other, but the whole must remain to the survivor."¹

At the end of the above-quoted discussion, there appears in Cooley's edition of the Commentaries the following note:

But where the estate is conveyed to a man and a woman, who are not married together, and who afterwards intermarry, as they took originally by moieties, they will be continue to hold by moieties after the marriage.

A modern treatise discusses tenancies by the entirety at the English common law as follows:

At common law any conveyance or (after the Statute of Wills in 1540) any devise to a husband and wife created a tenancy by the entirety which was characterized by an indestructible right of survivorship, even if the instrument expressly provided that the grantees or devisees were to hold as joint tenants or as tenants in common. A tenancy by the entirety was the only concurrent estate that could be created between husband and wife because they were deemed, at common law, to constitute a single person or entity.²

From these authorities, the following concepts can be distilled:

1. A common-law tenancy by the entirety is a species of joint tenancy in which the unity of person is added to the usual unities of interest, title, time, and possession.

2. A common-law tenancy by the entirety is created in the identical manner that a common-law joint tenancy is created, except that the grantees are husband and wife.

3. If there is no unity of person as between the grantees, as where they are not husband and wife, then no common-law tenancy by the entirety can be created.

Tenancy by the Entirety in the United States

The modern treatise quoted above continues as follows:

In the nineteenth century, however, the single-entity notion was almost wholly eliminated by adoption of the Married Women's Property Acts and the accompanying changes in social attitudes with respect to the relationship of husband and wife. In the United States, tenancies by the entirety have now been abolished in all but twenty jurisdictions. Where tenancies by the entirety have been abolished, a conveyance to husband and wife will necessarily create either a tenancy in common or a joint tenancy (where still

...