Yours, Mine, or Ours: A Proposal for Sensible Reform of the Massachusetts Tenancy-by-the-Entirety Statute

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"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)


A. 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. …