In the absence of actual knowledge or constructive notice derived from properly indexed instruments in the chain of title to the contrary, a title examiner may presume that an individual grantor identified in a recorded deed was unmarried and not a partner to a civil union at the time of the conveyance.
If the grantor took title with a spouse or a partner to a civil union, a title examiner may presume the spouse or partner to a civil union to be deceased if (a) the deed contains a recitation to that effect and has been recorded for not less than fifteen (15) years with the clerk of the town where the real property is located; (b) a death or burial certificate or decree issued by a court having competent jurisdiction, or other proof of death establishing the grantor’s status as widowed, has been recorded or is available for filing with the clerk of the town where the real property is located; or, (c) there is other reliable proof of death.
Comment 1. If the grantor is married or is a partner to a civil union, the property may be subject to a claim of the spouse or other partner to the civil union. See Title 27 V.S.A. §101 et seq., as to homestead rights. Section 141(a) renders a conveyance of a homestead property without execution by both spouses “inoperative”. The former rule that a deed to a homestead property, executed by only one spouse, is void was abandoned. Such a conveyance is inoperative with respect to the spouse who did not join in the conveyance and may be set aside by that spouse unless the homestead interest is otherwise extinguished. See, Estate of Girard v. Laird, 159 Vt. 508 (1993), overruling the holding in Martin v. Harrington, 73 Vt. 193 (1901). See Title 14 V.S.A. §461 et seq., as to “dower” and “curtesy” rights of a surviving spouse.
Comment 2. Notwithstanding the limitation discussed in Comment 1, a transfer of the homestead interest between spouses is permitted; with previous transfers being ratified. 27 V.S.A. 141(d).
Comment 3. The statutory presumption of the creation of a tenancy in common does not apply to conveyances to a husband and wife or to partners to a civil union where the presumption exists that a tenancy by the entirety is created. See 27 V.S.A. §2.
Comment 4. See Title 27 V.S.A. §349 and Act 91 of the Vermont Legislature, 1999 Adjourned Session (Civil Union Bill), for the rules governing conveyances between (1) Husband and wife; (2) Partners to a civil union; and (3) Spouses/partners to a civil union and one or more other persons. See, Act 003 2009-2010 Session, Vermont Legislature; “An Act to Protect Religious Freedom and Recognize Equality in Civil Marriage.”
Comment 5. 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, spouses [or a married couple] 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 6. Except for a Federal Tax Lien (See Standard 23.1), a creditor cannot attach property owned jointly by a debtor and a non-debtor when they hold title as tenants by the entirety. RBS Citizens, N.A. v. Ouhrabka, 30 A.3d 1266, 190 Vt. 251, 2011 VT 86 (2011). However, upon termination of a tenancy by the entirety, by death or dissolution of the marriage, the attachment or judgment lien may spring onto the interest of the spouse subject to the encumbrance. See Standard 2.2, Comment 5.
Comment 7. The Vermont Vital Records search system is here:
Comment 8. The recording of a certified copy of a final divorce decree or the relevant portion thereof in a Vermont divorce proceeding in the land records is sufficient to pass title to the property described in the divorce decree. 15 VSA §754 If the divorce decree specifies that one person is awarded the title to the property, the inclusion of a requirement that one party sign a deed is not a limitation on the effect of the order to convey title. A foreign divorce decree must be domesticated before recording.
March 29, 2000: Restated the language defining “knowledge” as being actual knowledge or constructive notice derived from properly indexed instruments in the chain of title. This concept is used in the first clause of Standards 6.2, 6.3, 6.4 and 6.5
August 1, 2000: Added references to the existence of Civil Unions under Act 91 of the Vermont Legislature, 1999 Adjourned Session.
September 24, 2010: Added Comments 2 and 5 (see also Standard 14.1, Comment 2).
September 20, 2012: Revised Comment 4.
September 2016: Comment 5 was revised.
September 2018: Comment 6 was added.
September 2020: Standard was revised, Comment 6 was revised, Comment 7 was added.
September 2022: Comment 8 was added.