Yours, mine, or ours: a proposal for sensible reform of the Massachusetts 'tenancy by the entirety' statute.

Author:Fischer, Sarah J.

"They were born at a time when the Renaissance was barely gestating, when a flat earth was the center of the universe, and when kings were divine.... Yet the relics of property law persist." (1)


    Modern concepts of property ownership are deeply rooted in centuries of Anglo-American jurisprudence. (2) The earliest form of concurrent property ownership--joint tenancy--dates back to the early thirteenth century; from the first references, joint tenancy included the hallmarks of the modern estate: undivided interest in the entire estate and the right of survivorship. (3) By the fourteenth century, English law recognized that husbands and wives could hold property in a special manner--distinct from a joint tenancy--while still including the right of survivorship and an undivided interest in the whole. (4)

    Early Massachusetts case law held that a tenancy by the entirety was distinct from a joint tenancy, because of the unity of husband and wife as one legal person. (5) While both husband and wife held legal title to the property, the husband had almost complete control over the land, save for the wife's indestructible right of survivorship. (6) In the latter part of the nineteenth century, a paradigm shift in the United States brought about the enactment of Married Women's Property Acts in all common-law jurisdictions. (7) In 1886, the Massachusetts Supreme Judicial Court (SJC) held that the new rights granted to women under the Massachusetts Married Women's Property Act did not apply to property held as tenants by the entirety. (8) As late as 1976, courts in Massachusetts recognized the superior rights of the husband in controlling marital property. (9)

    Massachusetts has since removed the gendered language from the tenancy-by-the-entirety statute. (10) While Massachusetts granted greater rights to the wife, it failed to offer the protections that other reforms of the same period did--the protection of one spouse from encumbrances entered into by the other spouse without his or her consent. (11) While the statutory language is silent as to whether spousal consent is required for mortgages, the SJC has held that either spouse can grant a mortgage on property held as tenants by the entirety. (12) In the case of default, protection for the nondebtor spouse is limited to a prohibition on forced partition and sale, so long as the property in question remains his or her principal residence. (13)

    Part II.A of this Note will discuss the development of concurrent ownership. (14) Part II.B will cover the early rise of women's property rights and the effect of the Married Women's Property Acts. (15) Part II.C will discuss tenancy by the entirety in Massachusetts in the latter half of the twentieth century. (16) Part II.D will explore the revisions to tenancy-by-the-entirety statutes in the second half of the twentieth century in Massachusetts. (17) Part II.E will explore the federally imposed limits on tenancies by the entirety. (18) Part II.F will discuss the approaches taken by other states. (19) Part III will propose statutory changes aimed at protecting the nondebtor spouse. (20)


    1. The Rise of Concurrent Ownership

      From at least the thirteenth century, multiple people could have concurrent interests in the same piece of real property. (21) Joint tenancy, with a right of survivorship, appeared as the first form of concurrent ownership. (22) Tenancy in common was the result of failed joint tenancies. (23) While the term "tenancy by the entirety" developed much later, the courts treated property owned by married couples differently from other cotenancies. (24)

      1. Joint Tenancy

        The English courts recognized the concept of joint tenancy at least as early as the 1230s. (25) Henry de Bracton, in his seminal treatise on English law and customs, described the duality of joint tenancy, existing where the joint tenants own equal, individual shares of the property and yet, simultaneously own the entire property. (26) Joint tenancy has always included the right of survivorship, which at the death of one of the tenants allowed the property to pass to the other joint tenants, rather than to the decedent's heirs. (27) It served as a mechanism to defeat the lord's right to relief and wardship. (28) Joint tenancy defeated wardship and relief because the tenant could hold the land together with his heir, and thus the tenant did not need to pay the incidents to the lord at the death of the tenant. (29)

        In order to create a joint tenancy, the joint tenants must possess the four unities: interest, title, time, and possession. (30) Destruction of any of the unities, through sale or transfer of the property, destroyed the joint tenancy and thus the right of survivorship. (31) The four unities, present from the earliest descriptions of joint tenancies, persist in modern law. (32)

        Prior to the end of the thirteenth century, tenants could not freely mortgage their lands; however, during the latter half of the thirteenth century, the freedom to mortgage developed. (33) At common law, the mortgagor granted title of the property to the mortgagee. (34) American jurisdictions differ on whether they follow the common law: title-theory states do, whereas lien-theory states pass only a lien to the mortgagee. (35) In a title-theory state, a mortgage granted to one joint tenant destroys the joint tenancy by severing the unity of title. (36) Only a few title-theory states remain; however, Massachusetts is among them. (37)

      2. Tenancy in Common

        Tenancy in common developed in England in the early fourteenth century. (38) Originally, this property scheme arose out of actions for partition, in which a court severed a joint tenancy. (39) Tenancies in common developed as the natural consequence of the stringent unity requirements for joint tenancies; if a transfer of property lacked one or more of the unities required for a joint tenancy, a tenancy in common could form. (40) The only unity required for a tenancy in common is possession. (41) Tenancies in common are distinguishable from joint tenancies because tenants in common may own different proportions of the property; additionally, tenants in common have no right of survivorship--a hallmark of joint tenancies. (42)

      3. Tenancy by the Entirety

        At common law, when a man and woman married, they merged into one person before the law, with the majority of rights and privileges vested in the husband. (43) As first discussed in a case from 1327, in which the court held the Crown could not defeat the wife's interest in jointly held real property--even when her husband committed treason--the oneness of husband and wife profoundly affected marital property rights. (44) While the courts gave deference to marital property, the term "tenancy by the entirety" would not exist for another 450 years. (45) From this history, the early modern concept of tenancy by the entirety developed, requiring the four unities of joint tenancy, as well as a legal marriage between the tenants. (46)

        As with much of property law, English common law on tenancies by the entirety became the basis for American common and statutory law relating to marital property. (47) Any conveyance of land to husband and wife was a conveyance in tenancy by the entirety. (48) Prior to the expansion of women's rights in the mid-nineteenth century, the husband had many superior rights in property held in a tenancy by the entirety. (49) Neither spouse had the right to determine the disposition of the property post mortem, should one predecease the other. (50)

    2. The Growth of Married Women's Property Rights

      1. In England

        As early as the seventeenth century, English equity courts began to relax the restriction on married women owning property. (51) The catalyst for this deviation from traditional common-law property concepts was the desire of the upper class, including jurists, to protect their daughters and their familial wealth. (52) By the end of the eighteenth century, courts accepted antenuptial agreements that gave women property rights outright, rather than in trust. (53)

      2. Married Women's Property Acts

        The first grants of statutory property rights for married women came from the enactment of Married Women's Property Acts, at the end of the antebellum period. (54) Several factors brought about the Married Women's Property Acts in the mid-nineteenth century; the most important was the cultural impact of the Panic of 1837, which led to greater debtor protection. (55) At the same time, republicanism advanced a pervasive desire to depart from the English common law. (56) Finally, this period saw the beginning of the women's suffrage movement. (57)

        While there is some debate, the traditional view is that Mississippi, in 1839, was the first state to pass a Married Women's Property Act. (58) Regardless of which statute came first, these early Married Women's Property Acts served as a form of debtor-protection legislation. (59) The early period of reform brought little continuity insofar as what protections relating to property states extended to women. (60) Courts resisted these grants of protections and construed the acts narrowly. (61)

        Some states refused to pass these reforms out of fear that the reforms would destabilize society and harm women, rather than protect them. (62) Many early women's suffrage leaders, including Elizabeth Cady Stanton, attempted to combat these fears and advocated for more far-reaching statutory reform. (63) In 1848, spurned forward by the women's suffrage movement, New York passed its Married Women's Property Act, which granted significantly more rights to married women than the previous acts. (64)

        At the end of the nineteenth century, state legislatures passed the final wave of reforms, albeit with different goals than the previous waves. (65) Women had made significant strides into the commercial sphere by the late-nineteenth century, and their growing financial power led to a reduction in protective...

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