Massachusetts Real Estate Lawyer Blog
The Massachusetts Land Court recently decided an interesting legal issue regarding the impact of a judgment execution on joint tenancy ownership in McHugh v. Zanfardino (Mass. Land Ct. Dec. 14, 2016). The question to be answered in the quiet title action was whether the recording of an execution by a judgment creditor severs the joint tenancy of the owners of the subject property, thus converting their ownership into a tenancy in common and defeating one co-owner’s right of survivorship upon the death of the other.
In McHugh, the plaintiff commenced an action seeking to quiet title to two condominium units, which she claimed to have held in joint tenancy with the decedent. She argued that upon his death, she became sole owner of the properties by right of survivorship. The decedent’s heirs, however, claimed that the plaintiff and decedent were tenants in common, and the decedent’s share of the units passed to his heirs upon his death.
In reaching its decision, the land court analyzed G.L. c. 236, § 12, the statute governing the effect of a levy of execution on property owned by either joint tenants or tenants in common. The statute provides that if land is held by a debtor in joint tenancy, the share belonging to the debtor may be taken on execution, and it is thereafter held in common with the co-tenant. Although the parties agreed that a joint tenancy terminates at the point that the land is taken on execution, they disputed the meaning of “taken on execution.” The plaintiff argued that the levy process must be completed (i.e., after the property has been appraised and sold) before converting to a tenancy in common, while the defendants argued that the beginning of the levy and the recording of the execution severs the joint tenancy.
Interpreting the plain meaning of the statute, the court found that the provision that property may be taken on execution does not entail a severance of the joint tenancy immediately upon the recording of the execution. The court’s reasoning was supported by other Massachusetts statutes regarding property law, which provide that while title is vested at whatever time the levy began, it only relates back to the date of recording when the levy is actually completed by undertaking the remaining steps necessary to complete the set-off or sale of the property, including the appraisal of the property and the completion of the sale. The court also noted that a levy that has begun may be defeated or waived prior to completion if the debtor simply pays the amount due, thereby satisfying the judgment and execution.
Accordingly, the land court went on to hold that an execution recorded against the interest of one joint tenant does not immediately convert the joint tenancy to a tenancy in common. It concluded that the levy must be completed for severance to occur, and only then does that severance relate back to the date of recording of the writ of execution. As a result, the matter was resolved in favor of the plaintiff.
If you are seeking legal guidance regarding your rights in the ownership or use of your property, consulting with a real estate lawyer may be instructive. At Pulgini & Norton, our Massachusetts land use attorneys provide trusted advice and representation to people in a wide range of disputes and property transactions. We can assist clients with purchase and sale agreements, mortgages and foreclosure proceedings, zoning issues, building permits, and more. To meet with one of our experienced attorneys, call at (781) 843-2200 or contact us online and schedule a consultation.
More Blog Posts:
Massachusetts Land Court Determines Issues of Record Ownership and Adverse Possession in Property Case, Massachusetts Real Estate Lawyer Blog, published June 20, 2016
Massachusetts Neighbors File Try-Title Action to Determine Ownership of Land Parcel, Massachusetts Real Estate Lawyer Blog, published December 19, 2016