The question of whether a joint
tenancy can be severed by the mere recording of a judgment execution has become
a hot-button topic among members of the Massachusetts real estate bar in recent
years. The Land Court recently weighed
in on the issue in the matter of McHugh
v. Zanfardino, 16 MISC 000331 (2016).
The underlying decision in the
matter stems from a quiet title action filed by Kelly McHugh against the adult
sons of her deceased co-owner, James Zanfardino, Sr. In 2005, McHugh and
Zanfardino, Sr. purchased a 3-family property on Greenwood Street in Worcester
as joint tenants with rights of survivorship. The next year, they converted the
property into a 3-unit condominium, and later sold one of the units to a third
party. McHugh and Zanfardino, Sr. retained ownership of the remaining two units.
In August of 2008, a judgment execution
in the amount of $4,989.65 was recorded in the Worcester District Registry of
Deeds against McHugh’s interest in the property. This execution was later
brought forward by a notice recorded in the registry in July of 2014, however,
the judgment creditor never completed the levy. Zanfardino, Sr. died intestate
in April of 2016.
The defendants in this matter
contended that the recording of the judgment execution against McHugh caused
the severance of the joint tenancy between her and Zanfardino, Sr., thereby
converting their interests in the property into a tenancy in common. As such,
upon his death, the defendants asserted that Zanfardino, Sr.’s interest in the
property therefore passed to them according to the law of intestate succession,
and not to McHugh as a surviving joint tenant. For her part, the plaintiff
contended that the joint tenancy is not severed until the completion of the
levy by sale or by setoff, and since neither had occurred in this instance, the
joint tenancy remained intact, entitling her to full ownership of the property
through the law of joint tenancy.
The Land Court’s decision in this
case hinged on its interpretation of GL c. 236, § 12, which governs the effect
of a levy on execution for properties held both in joint tenancy as well as
tenancy in common. The statute, which consists of only two sentences, reads as
follows:
If land is held
by a debtor in joint tenancy or as a tenant in common, the share thereof
belonging to the debtor may be taken on execution, and shall thereafter be held
in common with the co-tenant. If the whole share of the debtor is more than
sufficient to satisfy the execution, the levy shall be made upon such undivided
portion of such share as will, in the opinion of the appraisers, satisfy the
execution, and such undivided portion shall be held in common with the debtor
and the other co-tenant.
All parties were in agreement
that a joint tenancy is severed and becomes a tenancy in common at the point at
which the property is “taken on execution,” but they disagreed as to the
meaning of this phrase. In undertaking its analysis, the Court noted that the
statute is arcane and susceptible to competing interpretations.
Upon consideration of other
sections of Chapter 236, as well as interpretations rendered in prior cases
dating to the mid-1800’s, the Land Court ultimately agreed with the defendants’
contention that the taking occurs at some point prior to the completion of the
levy. However, the Court went on to explain that the language of Section 12
“does not entail a severance of the joint tenancy immediately upon recording of
the execution.” Instead, the Court interpreted Section 12 as establishing the
severance of the joint tenancy only retroactively, if and when the judgment
creditor actually completes the levy. Therefore, given that the levy against
McHugh’s interest in the property was never completed, the Court held that the
joint tenancy was not severed, and that all right, title and interest in the
property had vested in the plaintiff as the surviving joint tenant upon the
death of Zanfardino, Sr.
The Court also dispatched a number
of concerns put forth by the defendants, including their argument that delaying
severance of the joint tenancy could harm creditors in the event that the
debtor joint tenant dies before the levy is complete. In addressing this issue,
the Court acknowledged that liens against one joint tenant’s interest in
property are generally extinguished at death where non-debtor co-joint tenants
survive. However, the Court pointed out
that there exists a long history of case law in Massachusetts that has treated
levies differently from other liens, in that the intervening death of the
debtor does not prevent the creditor from completing the levy. The Court concluded that “for purposes of the
levy, a transfer of the debtor’s interest through the right of survivorship
would differ little from any other living or testate conveyance from which it
is well-established that the creditor is protected,” and accordingly, from the
perspective of a judgment creditor, early severance of the joint tenancy “thus
accomplishes no discernible goal.”
Whereas the completion of a levy
by setoff or by sale is a relatively rare occurrence, recorded judgment
executions are commonplace. As such, had the McHugh court reached the conclusion espoused by the defendants, an
untold number of titles would have been clouded by unaccounted-for interests
held by the heirs or devisees of a decedent whose interest was thought to have
passed to one or more surviving co-tenants. Clearly, for this reason the
decision as rendered by the Land Court in McHugh
is welcome news to conveyancers and title insurers alike. Moreover, this
decision no doubt stands in harmony with the presumed purpose of the law which,
as stated by the Court, is to “provide a process for the satisfaction of a
judgment that sufficiently protects the rights of both debtor and creditor,” while
avoiding what the Court considered a possible “irreparable harm” to the
property interests of the debtor in the case of an incomplete levy.
Tucker DuLong is Massachusetts title counsel for CATIC, New England’s
largest domestic title insurance underwriter.
He is also a member of the association’s standards and forms
committee. Tucker can be reached by
email at tdulong@catic.com.
