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CHAPTER XIV

STANDARD 14.1

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CONVEYANCE TO TWO OR MORE PERSONS

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 (i) in trust; (ii) to husband and wife; (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 (as to a civil union made after June 30, 2000) 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.

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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, 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 (provided both the civil union and the conveyance to the partners in the civil union occur after June 30, 2000 ), and a tenancy by the entirety is not intended, specific language to that effect should be used; ie:

"A & B, {husband and wife}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. The 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 are vested for one and the same period (eg: 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 requires that all tenants acquire and hold the same size or percentage share; 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. See 27 V.S.A.§ 349 for statutory modifications to creation of jointly held estates.

History

This standard was added in 2003.


 

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