PROPERTY (Section 1)
Spring Semester 2013
Tenancy by the Entireties
Pages 357-367

1. Suppose that Henning conveys land "to Fred Smith and Dana Jones as tenants by the entireties." At the time of the conveyance, Fred and Dana are not married. Two months later, they get married. How do Fred and Dana hold title? Why?

2. H and W own a home as tenants by the entireties. One evening, while driving drunk, H causes an accident that seriously injures X. X files suit against H for negligence, ultimately recovering a judgment for $400,000. X then asks the court to order an execution sale of H's interest in the home. Should the court do so, or not? As a matter of state law, should a creditor like X (who has a claim against only one spouse) be able to force an execution of sale of that spouse's interest in entireties property? Why or why not?

3. In states like Michigan, "land held by husband and wife as tenants by entirety is not subject to levy udner execution on judgment rendered against either husband or wife alone." [p. 363]. Should this rule be limited to marital status, or should it extend to other legal relationships or contractual relationships? For example, should this protection be extended to:

(a) Cotenants who are not married but who are in a legally-recognized civil union?

(b) Cotenants that may have participated in a religious ceremony that involved exchanging vows of marriage, but without a civil marriage license?

(c) A divorced mother and her 20 year-old son and 18-year old daughter who live at home while attending college?

(d) Siblings that take ownership of the family homestead after the death of their parents?

4. In Craft v. United States, the dispute again involves a creditor with a valid claim against only one spouse — in this case, the federal government, to whom Mr. Craft owes unpaid taxes. The court refuses to give Mrs. Craft the benefit of the Michigan state law rule, and concludes that as a matter of federal law, Mr. Craft has an interest in the home that is subject to the IRS's tax lien.

Who has the better of the argument in Craft — Justice O'Connor (who holds that the U.S. government's tax lien did attach to Mr. Craft's interest as an entireties tenant) or Justice Thomas (who would have held that the U.S. government's tax lien did not attach to Mr. Craft's interest, based upon Michigan's form of tenancy by the entirety)? Why?

5. Consider the Lawyering Exercise on page 367. How could you carry out the intent expressed by Tom and Julie? What concerns would you raise with them about their planned approach?