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Thursday, March 29, 2007

Tenancy by the entirety

For a primer on tenancy by the entirety, visit
http://www.thomasmoens.com/tenancy_by_the_entirety.htm

I had the misfortune of witnessing a good example of ineffective counsel regarding tenancy by the entirety yesterday. I was at a real estate closing where the buyers were moving here from the East Coast. They still owned a home on the East Coast. Unfortunately, the attorney they hired is not known for his brilliant legal acumen. He simply told them that tenancy by the entirety was the "best" way to take title. Here is just a small sampling of what he failed to ask to determine whether this was best for them:
  • Were they married? Sure he assumed they were, but if they were not, they cannot be tenants by the entirety. Of course, this is not as bad as another genius in the area who routinely vests title in unmarried people as "each an unmarried person, as tenants by the entirety."
  • Were they planning to occupy this house as their residence? Again, he assumed, but if they did not, they cannot be tenants by the entirety. Perhaps they were planning to remain on the East Coast for a few weeks or months.
  • Was their home on the East Coast owned by them as tenants by the entirety? Let’s say it was, and there was a judgment against the husband in the state from which they moved. It is possible that his haste to foist this tenancy upon them made that judgment immediately enforceable.
  • Did either of them have any reason to believe they may become disabled?
  • Did either of them have any reason to believe they were more likely than the average person to be sued?

So, if anyone tells you tenancy by the entirety is the "best" way for you to take title without asking you a few questions, run away quickly.

Oh, and he misspelled "entirety" on the deed.

6 comments:

Anonymous said...

Hi, I found your blog on Google. Everything I read on this subject refers to titling "real" property. What about investment accounts or cash held at a financial institution? Are the same rights of Tenancy by the entirety afforded to the owners of this type of asset class...especially when dealing with one of the owners having personal loan guarantees to creditors?

Lee said...

What if you're an unmarried couple and tenancy by the entirety is the way that your title is recorded?

She wants to force sale (retained an attorney) and I want to wait until a better time to refinance. I am currently living there and paying the entire mortgage. Can she do that? Does the law regarding tenancy of the entirety hold up even if we are not legally married?

Thomas O. Moens said...

If you are in Illinois, you SHOULD be considered joint tenants. You absolutely do not hold title as tenants by the entirety. To answer your questions, yes, she can do that.

Anonymous said...

Hi, my wife and I are recently divorced (Dec 24, 2008). In the post nup agreement it says "WIFE and HUSBAND have agreed to dispose of the marital real estate which they own as tenents by the entireties..." Doesn't the divorce nullify this arrangement and change our ownership to Tenents in common? We live in PA

Thomas O. Moens said...

Anonymous in PA: I am not licensed in PA, so I have no idea. In many states, you would be tenants in common, but the language in your divorce decree certainly adds a peculiar wrinkle. In IL, you CANNOT be TBE if you are not married.

Anonymous said...

I purchased my house 6 years ago as a single man. I recently married and my wife brought money into the marriage from the sale of her home. We applied that money to my existing home loan and paid it off. We would like to add her to the title to home I purchased 6 years ago as husband and wife tenancy by the entirety. One of the requirements to do this is that both parties must acquire their interest at the same time through one title. Would recording a new deed adding my wife satisfy this requirement?

Anonymous in Oregon