Ownership of property in Massachusetts, requires taking title to that property. If a person is taking title to property as an individual, then the following information does not apply, however, when you are thinking about adding another person to the title you will need to decide how you will both share ownership.
Joint Tenancy vs. Tenancy in Common vs. Tenancy by the Entirety
What is a Massachusetts Tenancy by the Entirety?
Only available to married couples in Massachusetts, the tenancy by the entirety is a form of ownership that may be the perfect choice for you and your spouse. Both spouses share the use and occupancy of the property, and if one spouse dies, the other becomes the sole owner. One spouse can mortgage or convey their own interest without the other’s consent, but whoever takes it does so subject to the other spouse’s right to the whole property if that spouse survives. Following a judgment of divorce, spouses become tenants in common (described below), unless the divorce judgment divides the property differently (Bernatavicius v. Bernatavicius, 259 Mass. 486 (1927)).
How is a Tenancy by the Entirety Formed in Massachusetts?
To form a tenancy by the entirety, the deed must expressly say the spouses take title as tenants by the entirety (G.L. c. 184, § 7). The wording matters: a deed to spouses “as joint tenants” creates a joint tenancy instead, and a deed “as tenants by the entirety” to two people who are not married to each other creates a joint tenancy. A married couple can also choose either of the other forms of ownership described in this article. If you need to change how you hold title, see how to change the names on a Massachusetts deed.
Are There Risks with owning as Tenants by the Entirety in Massachusetts?
The biggest advantage of a tenancy by the entirety is creditor protection. Under G.L. c. 209, § 1, a creditor of only one spouse cannot seize that spouse’s interest in the home while it is the principal residence of the other spouse. Keep in mind, though, that both spouses are liable for debts for necessaries, meaning items required in the family’s daily life. For added protection, consider recording a declaration of homestead.
How Does Bankruptcy Affect a Tenancy by the Entirety in Massachusetts?
It may be possible to protect the home when one spouse files for bankruptcy if one spouse is not at all liable for some of the debt owed by the other spouse. This is because, in a tenancy by the entirety, a primary residence will not generally be sold to pay money owed to creditors when the spouse that has not incurred the debt does not owe any of it. Consult our offices to learn more about your legal rights in your specific circumstances.
What if one Spouse Dies, What Happens to the Property?
This is a great question, and one of great concern when one spouse passes away. In most, generally in all cases, due to the right of survivorship, the spouse that remains will retain full ownership of the entire property. Contact our offices to learn more.
What is a Joint Tenancy?
One of the main aspects of a joint tenancy is that when two individuals own property as joint tenants and one person dies, because of survivorship rights, the living person will receive full ownership in the property. A joint tenancy differs from a tenancy by the entirety in two important ways: any joint tenant can sell or convey their share on their own, which ends the survivorship for that share, and a joint tenancy offers no special protection from one owner’s creditors. Because a tenancy by the entirety requires that both owners be married, a joint tenancy may be the right choice for unmarried couples who want the property to pass to the other on one person’s death.
How is a Joint Tenancy Created in Massachusetts
To create a joint tenancy, the deed must expressly say the owners take “jointly,” “as joint tenants,” “in joint tenancy,” or “to them and the survivor of them” (G.L. c. 184, § 7). Without that language, the default is a tenancy in common. Contact our offices to create a joint tenancy for your Massachusetts real property.
What is a Tenancy in Common in Massachusetts?
When the deed does not indicate a type of ownership, the default form under Massachusetts law is the tenancy in common (G.L. c. 184, § 7). Think of this form of property ownership as owning a share of the whole property. If you own 1/2 of the property and your friend or partner owns the other 1/2, you can sell or mortgage your 1/2 share, or leave it to someone in your will. Whoever receives it would then own that share, with the same rights you had.
One thing that must be understood about a tenancy in common is that each owner can use the whole property. Just because on paper you might own 1/2 of the property or 1/3 of the property, that fact does not mean that you can physically divide that 1/2 or 1/3 for your own use. Instead, both or all owners share the use of the property.
Owners generally share taxes, repairs and other expenses in proportion to their ownership, and an owner who pays more than their share may be able to seek contribution from the others.
How do I End a Tenancy in Common in Massachusetts?
Tenancies in common may be ended when the owners of the property can agree, in writing, to partition the property. It is also possible to end a tenancy in common by bringing one or multiple owners to court in a suit for partition.
What Happens when One Owner of a Tenancy in Common Dies?
Since no survivorship rights exist in a tenancy in common, the interest that an owner of a tenancy in common has will pass to the heirs of that owner.
How is the Debt of One Owner Handled in a Tenancy in Common?
Tenancy in common can be a tricky way of owning property because of the fact that the person to whom money is owed, the creditor, may be able to attach the debtor’s share of the home. Practically, this means that a creditor may be successful in forcing the sale of property to get paid by the one owner who owes the debt.
Complexities of the Massachusetts Property Ownership
Clearly, the ownership of property is a complex matter. Typically, the language used in the deed that is recorded in the registry of deeds within the county where the property is located will control. However, there are aspects of property law and property ownership that might bring the true ownership of property into question. For more information about changing the way of owning property in Massachusetts or to make changes to a current deed – contact us at 978-273-8337.
About the Author
Richard Alan Gaudet, Esq. is a Massachusetts attorney at the Law Offices of Richard Alan Gaudet, LLC in Middleton, Massachusetts, who advises clients on deeds, property ownership and real estate transfers. His practice focuses on professional license defense, business law and litigation, family law, and landlord representation, serving clients across Northern, Eastern, and Central Massachusetts. Reach him at 978-273-8337 or rgaudet@gaudetlawoffice.com. Office: 35 Village Rd., Ste 100, Middleton, MA 01949.
ABOUT THIS ARTICLE
This article was prepared by a Massachusetts attorney and is provided solely for general informational and educational purposes directed to members of the general public. It does not constitute legal advice and does not create an attorney-client relationship. The law applicable to any particular situation depends on the specific facts and circumstances of that matter. Readers are encouraged to seek the advice of a licensed Massachusetts attorney before taking any action.
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