Bulletin: MA000006

Date:
June 14, 2004
To:
All Massachusetts Issuing Offices
RE:
Tenancies by the Entirety in Light of Goodridge v. Department of Public Health, 440 Mass. 309, 798 N.E.2d 941 (2003) (the same-sex marriage case)

Dear Associates:

As you may be well aware, as ofMay 17, 2004, same sex marriages have become legal in Massachusetts.  The Supreme Judicial Court in Goodridge v. Department of Public Health, 440 Mass. 309, 798 N.E.2d 941 (2003) decided that it was unconstitutional to deny persons of the same sex the right to marry each other, at least where they are residents of the Commonwealth.[1]    There are many ramifications to this decision, but one that is of increasing interest to our agents is the question of how Stewart Title will deal with tenancies by the entirety regarding same-sex couples.  Of course, same-sex couples are free to take title as tenants in common or as joint tenants, but the purpose of this memo is to address the question of their taking title as tenants by the entirety.

The Goodridge court made specific reference to the tenancy by the entirety in its opinion, characterizing it as one of the benefits to those who enter into civil marriage.[2]  This specific reference, in light of the fact that the decision is based on constitutional grounds, seems to lead to the inescapable conclusion that a same-sex couple can hold title under a tenancy by the entirety in the same fashion, and with the same benefits and limitations, as an opposite-sex couple.  Absent future court decisions or legislative enactments that would require a different approach, Stewart Title will underwrite a title in which a tenancy by the entirety occurs between parties of the same sex in the same way it underwrites a title in which such a tenancy occurs between parties of the opposite sex.  What does this mean?

It has always been a basic title insurance industry tenet that the tenancy under which parties take their title should not be mentioned or insured in a title policy.  This position is not new and applies to all situations, regardless of the sex of the individuals or the tenancy under which they elect to take title.

It is important for the agent and practitioner to understand the advantages and disadvantages of holding title under the various tenancies available (tenancy in common, joint tenancy and tenancy by the entirety) and to be prepared to explain the options that are available to their clients.  With specific reference to a tenancy by the entirety (regardless of the sex of the parties), it should be noted that:

A divorce will sever a tenancy by the entirety and transform it to a tenancy in common.

Property held by the parties as tenants by the entirety cannot be the subject of a petition of partition.

A mortgage that is held by two persons as tenants by the entirety cannot be discharged by only one of them.  (This is an exception to rule in G.L. c. 183, §54 that one of two or more joint holders may discharge it.)

Since 1979, a deed to two persons as "tenants by the entirety" who are not married to each other will create a joint tenancy.  (Before that time such a deed would create a tenancy in common.)

With respect to tenancies by the entirety for same-sex married couples, however, it is also appropriate to note that such tenancies may be affected by future legislative or judicial action.

For the moment, Ed Williams, Chief Title Examiner of the Land Court, has recently issued a memorandum providing guidance to the Registry Districts on how to handle the recording of deeds and other documents with same-sex couples noted as holding title as tenants by the entirety and how to deal with certificates of title with respect to that issue.[3]  Essentially, the memorandum allows for the intake of such documents without inquiry behind the recitation of tenancy and discusses how notations on certificates of title will be made.  At the same time, the memorandum cautions that the guidance provided therein "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."

Nonetheless, the guidance provided in Ed Williams' memorandum relative to deeds and other documents referring to or creating a tenancy by the entirety would be prudent for real estate practitioners as well, whether registered or unregistered land is involved.  As always, however, please feel free to contact one of the Boston or Springfield underwriters should you run into these issues or other title issues involving same-sex married couples and would like to discuss them further, particularly in the context of a specific transaction or circumstance.[4]



[1]   Decided on November 18, 2003, the effect of the decision was delayed for 180 days, until May 17, 2004, to give the legislature time to "take such action as it may deem appropriate in light of this decision."  Id., 440 Mass. at 344, 798 N.E.2d at 970.  So far as we are aware, none of the tenancy issues discussed in this Bulletin have been addressed by the legislature to date.

[2]  Id., 440 Mass. at 323, 798 N.E.2d at 955.

[3]  The full text of his memorandum is attached for your reference.  It is also available on the Land Court's website homepage at http://www.mass.gov/courts/courtsandjudges/courts/landcourt/index.html by clicking on the document entitled  "Land Court Guidance Memo to Registration Districts Regarding Tenancy by the Entirety Documents."

[4]  Examples of such issues would be intestate succession and spousal rights, effect of divorce and division of property as part of a divorce, homestead rights and the termination of such rights, etc.

THIS BULLETIN IS FURNISHED TO INFORM YOU OF CURRENT DEVELOPMENTS. AS A REMINDER, YOU ARE CHARGED WITH KNOWLEDGE OF THE CONTENT ON VIRTUAL UNDERWRITER  AS IT EXISTS FROM TIME TO TIME AS IT APPLIES TO YOU, AS WELL AS ANY OTHER INSTRUCTIONS. OUR UNDERWRITING AGREEMENTS DO NOT AUTHORIZE OUR ISSUING AGENTS TO ENGAGE IN SETTLEMENTS OR CLOSINGS ON BEHALF OF STEWART TITLE GUARANTY COMPANY. THIS BULLETIN IS NOT INTENDED TO DIRECT YOUR ESCROW OR SETTLEMENT PRACTICES OR TO CHANGE PROVISIONS OF APPLICABLE UNDERWRITING AGREEMENTS. CONFIDENTIAL, PROPRIETARY, OR NONPUBLIC PERSONAL INFORMATION SHOULD NEVER BE SHARED OR DISSEMINATED EXCEPT AS ALLOWED BY LAW. IF APPLICABLE STATE LAW OR REGULATION IMPOSES ADDITIONAL REQUIREMENTS, YOU SHOULD CONTINUE TO COMPLY WITH THOSE REQUIREMENTS.

Memo

To: All Assistant Recorders

From: Edmund A. Williams, Chief Title Examiner

Date: May 6, 2004

Subject: Tenancies by the Entirety

Effective May 17, 2004:

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 to 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, a 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.

In case of any doubt, inquiries from district personnel should be directed to the Chief Title Examiner in Boston, or his designee.

References

Bulletins Replaced:
None
Related Bulletins:
None
Underwriting Manual:
None
Exceptions Manual:
None
Forms:
None