3.3 Property Ownership in Massachusetts

Forms of Co-Ownership

How co-owners hold title determines what happens at death, divorce, or when a creditor attacks. Massachusetts recognizes three concurrent estates.

Tenancy in Common (the default)

When a deed conveys to two or more people without specifying the tenancy, Massachusetts presumes a tenancy in common (TIC). Each owner holds an undivided, separately transferable interest with no right of survivorship.

Joint Tenancy and the Four Unities

A joint tenancy carries the right of survivorship: when one joint tenant dies, the survivor(s) absorb the share automatically, outside probate. Massachusetts requires the deed to expressly state survivorship, and the four unities (TTIP) must exist:

If one joint tenant sells, the buyer becomes a tenant in common with the others — the sale severs the joint tenancy as to that share.

Tenancy by the Entirety (married couples only)

Tenancy by the entirety is available only to a married couple and adds a powerful creditor shield: a creditor of one spouse alone cannot force a sale of the home during the marriage. Neither spouse can sever it unilaterally; a divorce converts it to a tenancy in common. Massachusetts also recognizes ownership by same-sex married couples in this form.

The Massachusetts Homestead Act (Updated 2024)

The Homestead Act (M.G.L. c.188) protects equity in a principal residence from most unsecured creditors. This is one of the most-updated facts on the exam: effective August 6, 2024, the Legislature raised the declared homestead protection from $500,000 to $1,000,000. Homeowners who previously filed do not need to re-file to get the higher amount.

Two tiers of protection

What homestead does and does not protect

Worked example

A homeowner has a home worth $700,000 with a $300,000 mortgage — $400,000 of equity. With a declared homestead ($1,000,000), all $400,000 of equity is shielded from an unsecured judgment creditor. Without any homestead, only the $125,000 automatic amount would be protected, exposing roughly $275,000 of equity. The homestead never blocks the mortgage holder from foreclosing.

Separate-Property (Common-Law) State

Massachusetts is not a community property state. Property acquired by one spouse is presumptively that spouse's, and at divorce the court applies equitable distribution under M.G.L. c.208, §34 — a fair, not automatically 50/50, division considering contributions, length of marriage, and need. A frequent exam trap: confusing Massachusetts with a community-property state where spouses automatically split marital assets in half.

Severance, Partition, and Why the Tenancy Choice Matters

The choice among the three concurrent estates produces very different outcomes when an owner dies, divorces, or faces a creditor — which is exactly why the exam tests it with fact patterns.

Death of a co-owner

Severance and partition

A joint tenancy is fragile: if one joint tenant conveys their interest, that conveyance severs the joint tenancy as to that share, turning it into a tenancy in common — the survivorship right is destroyed for that portion. Any tenant in common or joint tenant may file a partition action in the Land Court or Probate Court to divide the property physically (partition in kind) or, more commonly for a house, force a partition by sale and split the proceeds. A tenancy by the entirety cannot be partitioned while the marriage continues.

Practical advice and trusts

Married buyers commonly take title as tenants by the entirety for the creditor shield. Unmarried co-buyers (e.g., siblings or partners) usually choose joint tenancy with survivorship if they want the property to pass to each other, or tenancy in common if they want their shares to pass to their own heirs. Many Massachusetts owners also hold title through a realty trust or nominee trust for privacy and estate planning. A licensee should never give legal advice on which form to use — that is the role of the client's attorney — but must understand the consequences to explain options and route the client to counsel.