Tenancy by the entireties, and what a deed does not say

Listen instead

The same material, read aloud and told more loosely than it is written. Nothing is said in it that this page does not also say.

That same recording, with the writing lit line by line as it plays and the sections listed beside it, is on its own page.

It is the default, not a choice somebody made

EPTL 6-2.2¹ sets New York's rules for what a conveyance to more than one person creates, and the ordering matters.

Subsection (a) makes a disposition to two or more persons a tenancy in common unless a joint tenancy is expressly declared. Subsection (b) carves the marital case out of that: a disposition of real property to a husband and wife creates a tenancy by the entirety, unless expressly declared to be a joint tenancy or a tenancy in common.

So the strongest form of co-ownership is the one nobody has to ask for. Since 1996 the same rule reaches the shares and proprietary lease of a co-operative apartment, which is most of what people own in Manhattan.

The deed describes, and the description is not the fact

Subsection (d) is the one that should stop a reader from drawing conclusions off the grantee line.

Where property is conveyed to people who are not legally married to one another but who are described in the disposition as husband and wife, or as spouses, the disposition creates a joint tenancy rather than a tenancy by the entirety.

Read that in reverse and the problem is plain. The words on the deed are the same in both cases. What separates a tenancy by the entirety from a joint tenancy is whether the two grantees were in fact married on the day of the conveyance, and no county register in the country records that. A search returns two names and a relationship word somebody typed.

What it does to a creditor of one of them

Neither spouse owns a divisible share, which is the whole of the difference.

A judgment against one spouse alone docks against that spouse's interest, and in an entireties estate that interest is not a half to be sold. Both statutes in this area say so from the side door. DCL 270² excludes from the definition of an asset an interest in property held in tenancy by the entirety, to the extent it is not subject to process by a creditor holding a claim against only one tenant. Fla. Stat. 726.102³ uses the same words for Florida.

That exclusion has a consequence worth following. If an entireties interest is not an asset, then a transfer of it is not a transfer of an asset, and the voidable transfer sections have nothing to bite on.

Florida, where it matters most and is written down least

Florida recognizes the estate at common law rather than by a statute creating it, so there is no section to cite for the rule itself.

What the statute books do is refer to it. The voidable transfer definition above is one place. Fla. Stat. 713.12⁴ is another: where one spouse contracts for improvements to property owned by the other or by both, the contracting spouse is deemed the agent of the other to the extent of subjecting that other's interest to a lien, unless the other serves written objection within ten days of learning of the contract.

So an entireties home is not beyond every claim. A mechanics lien reaches it through the agency the statute presumes, and the ten day objection is the only thing that stops it.

What ends it

Three events, and only one of them leaves a document in the land records.

A joint conveyance out ends it and is recorded. Divorce ends it by converting the estate, and the judgment of divorce sits in a court file rather than in the register unless somebody records it. Death of one spouse ends it by leaving the survivor owning the whole, and whether anything is recorded depends on whether the survivor bothers.

A creditor watching only the land records therefore sees one of the three reliably and the other two sometimes. The estate can end without the register noticing.

What this does not cover

Whether a particular estate is an entireties estate, which is the only question that matters and the one a register cannot answer.

Marriage on the day of conveyance is the test under EPTL 6-2.2(b) and it is not in any deed. Florida's version is common law. Its contours come from cases, not from a section anybody can link to. And a judgment against both spouses is a different situation entirely, because then there is no single-creditor problem to solve.

Nobody writing this is a lawyer and none of it is advice. Whether an entireties estate stands between a judgment and a house is a question for counsel, and it is one that turns on facts from outside the land records. What a page can do is narrower. It can tell you that the deed you are reading describes a relationship rather than proving one, and that the default in New York runs toward the estate a creditor of one spouse likes least.