Concurrent Ownership. Louis Hennefield served in the U.S. Air Force between 1952 and 1968, and received an honorable discharge. During his service, Hennefield suffered a "wartime service-connected disability" that, according to the U.S. Veterans

Question

Administration, "was totally disabling." Hennefield and Blair O'Dell began living together in 1975, and ten years later, bought a house n Montclair, Essex County, New Jersey. The two men took title to the house as joint tenants with right of survivorship. Under a New Jersey state statute, they received a "disabled veteran's exemption" from the payment of 50 percent of the taxes on the property. In 2004, they attempted to re-convey the house to themselves as tenants by the entirety and filed a claim with Essex County for a 100-percent tax exemption, which is normally granted to qualified veterans in "traditional" marriages. What distinguishes a tenancy by the entirety from a joint tenancy with a right of survivorship? Should the "re-conveyance" be considered effective in this case? Discuss.

Answer 1

Concurrent ownership
The county denied Hennefield and O'Dell's claim, and they appealed to a state trial court, which held that their attempted "re-conveyance" was not effective. The court explained that, among other things, a "tenancy by the entirety can only exist between husband and wife." Thus, for example, "a conveyance of real estate to a man and woman, who are not lawfully husband and wife at the time of the conveyance, cannot create a tenancy by the entirety." Here, "[t]he Plaintiffs have not persuaded this court that a same-sex couple should be treated any differently in this regard." For this reason, "the Plaintiffs ‘own' the subject property as joint tenants with right of survivorship." (Under the state's Domestic Partnership Act, however, the court awarded the plaintiffs a 100-percent exemption," treating the Plaintiffs' ownership interest in the subject property in the same fashion as is accorded to married couples," in accord "with other tax exemptions that were made specifically applicable to domestic partners under the [act]." The court added, "This ruling should not be interpreted as equating, or otherwise eliminating any distinction between, property held by same-sex domestic partners as joint ten-ants with right of survivorship, and property held by married couples as tenants by the entirety.")