Establishing tenancy by the entirety
When presented with a deed or other document to be registered which refers to, or establishes or conveys title in or to two individuals “as tenants by the entirety,” (or which uses any similar form of words intended to create, establish, or refer to title in those individuals as tenants by the entirety), registration districts of the Land Court should not—as a prerequisite to registration—inquire, conduct investigation or require production of proof in any form concerning the marital status of the two individuals, or their qualification or entitlement to be married to each other. This is so without regard to whether the two individuals are or are not (or appear from their names to be or not be) either of the same sex or of the opposite sex. A document referring to, establishing, or conveying title in or to two individuals may, but to be registered need not, contain words reciting the marriage of the two individuals to each other.
Following registration of a deed or other instrument which conveys title to, or establishes title in, two individuals as tenants by the entirety, if fee ownership of registered land is changed as a result, the new transfer certificate of title should issue in their names, with the recitation on the face of the new transfer certificate that they hold their title as “tenants by the entirety.” If fee ownership does not change as a result, the appropriate notation on the memoranda of encumbrances should be made, again with the recitation that the two individuals hold their title “as tenants by the entirety.” The proper form for these recitations and notations on certificates of title is “A and B, as tenants by the entirety” without references such as “husband and wife,” “married to each other,” or similar language.
The registration of any document running in favor of two individuals “as tenants by the entirety,” and the issuance by the districts of, or the making by the districts of notation on, any certificate referring to two individuals as “tenants by the entirety,” does not preclude subsequent challenge to their right or ability to hold their title as tenants by the entirety, in an appropriate judicial proceeding brought in the Land Court or other court of competent jurisdiction.
Additional characteristics of tenants by the entirety
Marital status is important only in cases of tenancy by the entirety. Spouses may assign mortgages to each other (See G.L. ch. 209, § 2), may mortgage to one another (G.L. c. 209, § 3) and otherwise may transfer their interest in the property to each other.
The interest of a tenant by the entirety can be mortgaged without the consent of the non debtor spouse. In the event of a foreclosure, the mortgagee acquires the property subject to rights of survivorship of the non debtor spouse. (Coraccio v. Lowell Five Cents Savings Bank, 415 Mass. 145). Accordingly, in such circumstances the foreclosure documents should be noted on the memorandum of encumbrances of the certificate of title in the name of the husband and wife, and no new certificate will issue.
A new tenancy by the entirety was created by Chapter 727 of the Acts of 1979, amending G.L. c. 209, § 1 (effective February 11, 1980). This law does not affect pre-existing tenancies by the entirety. However, under G.L. c. 209, § 1A, tenants by the entirety holding real property under a deed dated prior to February 11, 1980 may elect in a writing identifying the real estate by Book and Page wherein the deed is filed, to have the property treated pursuant to the provisions governing separate and marital property. The election must be executed by the grantees named as tenants by the entirety on the deed and the writing must be duly notarized and filed at the appropriate Registry District . Registry Districts should file and note such election on the Memoranda of Encumbrances of the certificate of title.
Chapter 400 of the Acts of 1989 amended G.L. c. 36 by inserting a new c. 32A as follows:
“Section 32A. Whenever the register, in any communication, document or writing intended for use outside the registry, identifies a husband and wife, he shall use the name of both husband and wife and shall not use a legal phrase as a substitute for either name."
“This will be effective January 10, 1990.”