Conveyances and devises of lands, whether for years, for life or in fee, made to two or more persons, shall be construed to create estates in common and not in joint tenancy, unless it is consistently and unambiguously expressed therein that the grantees or devisees shall take the lands jointly or as joint tenants or in joint tenancy or to them and the survivors of them. This provision shall not apply to (a) devises or conveyances made in trust; (ii) to a married couple; (iii) to parties who are parties to a civil union where the civil union and the conveyance were both made after June 30, 2000; or (b) a conveyance in which it manifestly appears from the tenor of the instrument that it was intended to create an estate in joint tenancy.
Conveyances or devises of an interest in land to two persons whose marriage or civil union is recognized by the State of Vermont creates a tenancy by the entirety, unless it manifestly appears from the tenor of the instrument that it was intended to create an estate in common or a joint tenancy.
If a grantor took title with a spouse, a partner to a civil union or a joint tenant, a title examiner may presume the spouse, partner to a civil union or joint tenant to be deceased if: (a) the deed contains a recitation to that effect and has been recorded for not less than fifteen (15) years with the clerk of the town where the real property is located; (b) a death or burial certificate or decree issued by a court having competent jurisdiction, or other proof of death establishing the grantor’s status as widowed, has been recorded or is available for filing with the clerk of the town where the real property is located; or, (c) there is other reliable proof of death.
Comment 1. The common law incident of survivorship prevails for tenancies by the entirety in Vermont. See Town of Corinth v. Emery, 63 Vt. 505, 22 A 618 (1891).
Comment 2. The failure to identify or state the marital relationship of plural grantees in a conveyance does not impair marketability if such identity or relationship is otherwise established by, or can be readily inferred from, other recorded instruments, acknowledgments or affidavits, it is good practice, however, to recite the marital or civil union relationship in the deed; ie:
“A & B, husband and wife as tenants by the entirety”
“A & B, spouses [married couple] as tenants by the entirety”
“A& B, parties to a civil union as tenants by the entirety”
Moynihan’s Introduction to the Law of Real Property, 229-235 , (West, 1962), traces and discusses the common law roots of the tenancy by the entirety. Moynihan writes that:
At common law a conveyance to grantees who were husband and wife created in them an estate by the entireties. It was not necessary that they be described as husband and wife or that the conveyance manifest an intention that they take as tenants by the entirety. (230).
The failure to identify or state the marital or civil union relationship of plural grantees in a conveyance does not impair marketability if such identity or relationship is otherwise established by, or can be readily inferred from, other recorded instruments, acknowledgments or affidavits. For some Vermont cases addressing the nature of interest held by plural grantees, see: Brownson v. Hull, 16, Vt. 309 (1844); Davis v. Davis, 30 Vt. 440, 441 (1875); Town of Corinth V. Emery, 63 Vt. 505 (1891).
Comment 3. To make a consistent and unambiguous expression of the intent to create an estate other than an estate in common, the conveyancer should explain precisely the nature of the interest intended, and specific language to that effect should be inserted in any deed, either in the Granting Clause (which passes title to the interest) or in the Habendum Clause (which sets forth the estate to be held), or both, but if it appears in both clauses the expression of the intended estate must be the same. The fact that the expression of the intent to create an estate other than an estate in common appears in only one of the two clauses does not create an ambiguity or negate the effect of specifying the intended estate.
Comment 4. In the event that the Grant clause and the Habendum clause in a particular deed specify different tenancies, it is likely that the presumption would be that the deed creates a tenancy in common. Kipp v. Chips Estate 169 Vt.102, (1999)
Comment 5. Where property is deeded to married persons or persons joined by a civil union and a tenancy by the entirety is not intended, specific language to that effect should be used; ie:
“A & B, {husband and wife; a married couple; or parties to a civil union}, as tenants in common and not as tenants by the entirety”.
Comment 6. Where property is deeded to other than married persons or parties to a civil union, unless a tenancy in common is intended, specific language explaining the interest intended should be used; ie:
“A & B, as joint tenants with rights of survivorship”
Comment 7. Where mixed entities are involved, specific language should be used to insure that the intended result is clearly understood; ie:
“A as to an undivided 72% interest and B as to an undivided 28% interest, as tenants in common”
“A & B, husband and wife, as tenants by the entirety as to an undivided one-half interest; and C & D, husband and wife as tenants by the entirety as to an undivided one-half interest, the marital unities to take as tenants in common”
–OR– “A&B, parties to a civil union, as tenants by the entirety as to an undivided one-half interest; and C& D, parties to a civil union as tenants by the entirety as to an undivided one-half interest, the civil union unities to take as tenants in common”
“A & B, husband and wife or “A& B, parties to a civil union as tenants by the entirety; and C, the tenants by the entirety and the individual to take as joint tenants with rights of survivorship”
Comment 8. Removed
Comment 9. Subject to 27 VSA §2(b) which provides that an instrument may create a joint tenancy in which the interests of joint tenants may be equal or unequal, common law provides that formation of a joint tenancy must satisfy the four unities, being the unity of time, title, interest and possession. The unity of time requires that the estate of the tenants is vested for one and the same period (e.g.: joint tenants for a term of years, joint tenants in fee simple; the estates are running at the same time and for the same length of time; joint estates cannot run for different or successive time periods). The unity of title requires that the joint estate of all of the tenants be acquired in a single transfer. In contrast, tenants in common may take property by several titles. The unity of interest (now amended by 27 VSA §2(b)) required that all tenants acquire and hold the same size or percentage share; and that joint tenants may not have joint interests in a property of different character, scope or size. The unity of possession requires that the tenants hold the same undivided possession of the whole and enjoy the same rights until the death of one.
Comment 10. Except for a Federal Tax Lien (See Standard 23.1), a creditor cannot attach property owned jointly by a debtor and a non-debtor when they hold title as tenants by the entirety. RBS Citizens, N.A. v. Ouhrabka, 30 A.3d 1266, 190 Vt. 251, 2011 VT 86 (2011). However, upon termination of a tenancy by the entirety, by death or dissolution of the marriage, the attachment or judgment lien may spring onto the interest of the spouse subject to the encumbrance. See Standard 2.2, Comment 5.
Comment 11. Examples of “other reliable proof of death” include but are not limited to:
(a) Obituary found online or in newspaper archives, with care to review the other evidence of identity such as names of spouses, children, or known facts related to the deceased;
(b) Evidence obtained from official vital records research, e.g. the Vermont Vital Records search system https://secure.vermont.gov/VSARA/vitalrecords/search-tool.php
(c) Official records indicating proof of death as used in jurisdictions where the terminology is different from the customary “death certificate.”
In the absence of other evidence, a suitable affidavit confirming the death.
History
This standard was added in 2003.
September 18, 2014: The standard was amended as follows:
- Second sentence of the first paragraph: Change “husband and wife” to “a married couple”.
- First sentence of second paragraph: Delete the following phrase after the words ‘civil union’ (“as to a civil union made after June 30, 2000”);
- Add the third paragraph.
- Comments were amended as follows:
- Comment 2 to add the example: “A & B, a married couple as tenants by the
entirety”. - Comment 5 to: (1) delete the following parenthetical phrase after the words ‘civil union’ (“provided both the civil union and the conveyance to the partners in the civil union occur after June 30, 2000”); (2) to amend the example by adding “a married couple”.
- Comment 2 to add the example: “A & B, a married couple as tenants by the
September 27, 2018: The standard was amended as follows:
Comment 8 removed and replaced with Comment 9
Comment 10 was added.
September 2020: Standard was revised, Comment 10 was revised, Comment 11 added.
September 2024: Comment 11 was revised.