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

0:26It is the default, not a choice somebody made

Start with the default, because nobody chose it.

EPTL 6-2.2 sets New York's rules for what a conveyance to more than one person creates, and the order of the subsections matters.

Subsection A makes a disposition to two or more persons a tenancy in common, unless a joint tenancy is expressly declared. Then 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 it's 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. It's the default. And 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.

Now here's the part I'd want you to see. The deed describes. What it describes is whatever somebody typed.

Subsection D should stop you drawing any conclusion off the grantee line.

Where property is conveyed to people who aren't 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 identical in both cases. What separates a tenancy by the entirety from a joint tenancy is whether those two grantees were in fact married on the day of the conveyance. And no county register in the country records that.

2:06The deed describes, and the description is not the fact

Your search returns two names, and a relationship word somebody typed.

2:11What it does to a creditor of one of them

So what does it do to a creditor of one of them.

Neither spouse owns a divisible share. That's the whole of the difference.

A judgment against one spouse alone docks against that spouse's interest, and in an entireties estate that interest isn't a half to be sold. Both statutes in this area say so from the side door. DCL 270 excludes, from the definition of an asset, an interest in property held in tenancy by the entirety, to the extent it isn't subject to process by a creditor holding a claim against only one tenant. Fla. Stat. 726.102 uses the same words for Florida.

And follow that exclusion one step further, because it has a consequence. If an entireties interest isn't an asset, then a transfer of it isn't a transfer of an asset. And the voidable transfer sections have nothing to bite on.

3:10Florida, where it matters most and is written down least

Then there's Florida, where this matters most and is written down least.

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

What the statute books do is refer to it. The voidable transfer definition is one place. Fla. Stat. 713.12 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 10 days of learning of the contract.

So an entireties home isn't beyond every claim. A mechanics lien reaches it through the agency the statute presumes, and a 10 day objection is the only thing that stops it.

4:11What ends it

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

A joint conveyance out ends it, and that one 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.

So if you're watching only the land records, you see one of the three reliably and the other two sometimes. The estate can end without the register noticing.

4:53What this does not cover

Here's what I can't tell you.

Whether a particular estate is an entireties estate. Which is the only question that matters, and the one the register can't answer.

Marriage on the day of conveyance is the test under EPTL 6-2.2, subsection B, and no deed records it. Florida's version is common law, and its contours come from cases, which leaves me no section to point you at. And a judgment against both spouses is a different situation entirely, because then there's no single-creditor problem to solve.

I'm not a lawyer and none of this is advice. Whether an entireties estate stands between your judgment and a house is a question for counsel, and it turns on facts from outside the land records.

What I can tell you is narrower. The deed you're reading describes a relationship rather than proving one. And the default in New York runs toward the estate that a creditor of one spouse likes least.

If there are two names on that deed and one of them is your debtor, it's worth asking before you spend anything. And the piece on transfers after a judgment picks up what happens when one of them conveys.