To properly prepare mortgage documents, the lender requires information from the borrower about how the borrower intends to take title to the real estate.
The three most common ways that two or more persons may hold title to real estate in Massachusetts are shown below:
- Tenants in Common;
- Joint Tenants; and
- Tenants by the Entirety.Â
What Happens Upon an Owner's Death
- When title is held as Tenants in Common (which is the default tenancy if no other is specified), it is necessary to probate the estate of the deceased before the real estate may be sold or mortgaged. There is no right of survivorship.
- When the title is held as Joint Tenants or as Tenants by the Entirety, the title automatically succeeds to the surviving title holder(s) and it is unnecessary to probate the estate of the deceased before the real estate may be sold or mortgaged.
- In case of death of any owner of real estate, whether as Tenants in Common, Joint Tenants or Tenants by the Entirety, it is necessary to procure a release of the estate tax or taxes which automatically, by statute, become a lien on the property.
Who has Control and Management?
- When title is held as Tenants in Common or as Joint Tenants, the rents, control, management and possession of the property rest with the owners equally, in the absence of an agreement to the contrary, but individuals can divest themselves of their individual share in the property without others joining in.
- Under the provisions of M.G.L. c. 209, §1, when title is held as Tenants by the Entirety, (which is limited to husband and wife) rents, control, management and possession of property rest with the owners equally. This form of tenancy also provides some additional creditor protection as specified in Chapter 209 and is generally preferable for married couples.
- G. L. c. 209 states: “The interest of a debtor spouse in property held as tenants by the entirety shall not be subject to seizure or execution by a creditor of such debtor spouse so long as such property is the principal residence of the non-debtor spouse; provided, however, both spouses shall be liable jointly or severally for debts incurred on account of necessaries furnished to either spouse or to a member of their family. Neither the husband nor the wife can divest themselves of their interest in the property to any one except to each other so long as the marriage lasts without the signature of both.”
