5.3 Joint Action Necessary
Once the conditions for the creation are satisfied, the tenancy becomes more than the sum of its parts:
“Maryland retains the estate of tenancy by the entirety in its traditional form. Columbian Carbon Co. v. Kight, supra. By common law, a conveyance to husband and wife does not make them joint tenants, nor are they tenants in common; they are in the contemplation of the law but one person, and hence they take, not by moieties, but by the entirety. Neither can alienate without the consent of the other, and the survivor takes the whole … Tenancy by the entirety may not be severed by the consent of one of the parties or by their individual judgment creditors during their joint lives; except in the case of absolute divorce, during the lifetime of both tenants their estate may be terminated only by the joint action of both and a conveyance to a third person.”
Beall v. Beall, 291 Md. 224, 234, 434 A.2d 1015, 1021 (1981) (citations omitted).
Beall involved a bare offer executed by a husband and wife to sell real estate held by the entireties. The husband died before the offeree accepted the offer to purchase the land. The issue was whether the offer survived the husband’s death. The rule governing such offers (not supported by consideration) is that it is revoked by the death of the offeror. The Court held that the offer was by a separate entity (the entirety estate) and that this estate terminates by the death of one spouse. The surviving spouse is not obligated to uphold the offer.
In Arbesman v. Winer, 298 Md. 282, 468 A.2d 633 (1983) the issue was whether one spouse may unilaterally terminate a lease of the tenants by the entirety property. In Arbesman, the wife’s sister lived in part of the marital home, taking care of the wife. The husband attempted to terminate the tenancy of his wife’s sister. The Court held that such a lease could only be terminated by both husband and wife:
“In summary, the tenancy by the entireties estate as it currently exists in Maryland has the following pertinent incidents: the husband and wife take the tenancy by the entireties property not by moieties but by the entirety; each spouse has an equal right to income derived from the tenancy by the entireties property but no right to compel an accounting during marriage … and neither spouse may lease, dispose of or encumber land held as tenants by the entireties without the consent of the other.”
Arbesman, at 290 (citation omitted).
It is the separateness of the tenancy from its individual constituents that creates the asset protection attribute of the tenancy. Entireties property is not subject to the claims against only one spouse: “[P]roperty held by the entireties is watertight as to claims against one spouse only.” In re Carroll, 237 B.R. 872, 874 (Bankr. D. Md. 1999).