I am reading a case from 1978, Kahn v. Kahn, in which the Court of Appeals in New York debated whether it had the authority to order the sale a couple's home during divorce proceedings.

The principal issue presented on this appeal is whether, in a matrimonial action, a court may order the sale of real property held by the parties as tenants by the entirety, even though the marital relationship has not been legally altered.

I do not understand why the fact that the parties are "tenants by the entirety" would at all matter to whether the court has the power to order the sale of the home. Courts routinely order people to do things that they don't want to do. If I am sued successfully and I don't have the cash to pay, the Court can order me to sell something to satisfy the debt, including my real estate. So why would this be any different?

I don't understand the premise and it's not explained in the judgement. It seems to rely on pre-existing legal knowledge

1 Answer 1


Tenancy By Entireties explained

Real property is held in tenancy by entirety, in the small minority of U.S. states that recognize that form of ownership, when real property is held in equal joint tenancy by a married couple. Tenancy by entirety property is exempt from the claims of a creditor of one spouse who is not the creditor of the other spouse.

In the time when it arose, this had a practical effect similar to a modern homestead property exemption from creditors, even though it was conceptually different. Normally, at that time, couples often co-owned their residence, but investment or business real property was normally held only in the name of one spouse, usually the husband except in the case of inheritances.

A tenancy by entireties is one of several ways that people who are married can own a particular parcel of real property and applies on a parcel by parcel of real estate basis. Tenancy-in-common (which does not have to be 50-50 and does not include a right of survivorship), or ownership by only one spouse, are other common alternatives for married people to own particular parcels of real estate where tenancy by entireties is an option.

Generally, the only other way that a tenancy by entirety in a particular parcel of real estate can be terminated is when the marriage is dissolved by death, or by a divorce, or when the property is sold or transferred with the mutual voluntary consent of both spouses, which can be denied in either spouse's sole and absolute discretion.

Conceptually, the idea is that tenancy by entirety property belongs to a married couple and can only be alienated, during the marriage, with the mutual consent of both spouses, either directly, or because they mutually borrowed money that was then not paid.

This case in the context of fault based divorce

Kahn v. Kahn was a divorce case filed during the period (which only ended in the year 2010) when New York State had only fault based divorce. The trial court declined to allow the couple to get divorced because marital fault sufficient to allow a divorce was not established. The conclusions that the couple was not entitled to a divorce was undisputed on appeal. This had the de facto effect of converting the divorce case to a legal separation case that did not end the marriage.

Since there wasn't going to be a divorce and the marriage was still intact, and since no joint creditor of the spouses was seeking to enforce a joint debt against the house, it wasn't clear if the court had the authority to end the tenancy by entirety by selling the house, in a mere legal separation case.

The Court of Appeals (which is the highest appellate court in the state courts of New York equivalent to the Supreme Court of most states), resolved that question in Kahn v. Kahn, affirming the common law rule that only the end of a marriage, mutual consent, or a claim of a joint creditor of the spouses could terminate a tenancy by entirety or force a sale of the property.

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    @ighost Because it wasn't a divorce. The court held that they were not eligible to get divorced.
    – ohwilleke
    Commented Apr 4 at 22:35
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    @ighost Banish the idea that this is a divorce from your mind. Keep in mind that one spouse can't even get divorced over the objection other the other spouse in a fault based divorce system. If the court could do everything in a legal separation that it could in a divorce, the fault limitation on getting a divorce would be less meaningful. Fault based divorce is a contract based concept of divorce. Similarly, a breaching party can't sue a non-breaching party for breach of contract.
    – ohwilleke
    Commented Apr 4 at 23:09
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    @ighost Put yet another way, tenancy by entirety means that during the marriage, a spouse has an absolute right to refuse to allow the house to be sold.
    – ohwilleke
    Commented Apr 4 at 23:10
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    Ok thanks I got it now. I thought a couple only had one "tenancy of the entirety" and it applied to any land they owned. But that seems to be a misunderstanding. It sounds like a couple can have multiple TotEs and each one comes into existence when the couple acquires property, and if the property is removed from them somehow, the TotE evaporates as well
    – lgshost
    Commented Apr 4 at 23:20
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    @igshost Correct, TBE is specific to a particular parcel of real property. There could be more than one, there could be none. It is an alternative to tenancy in common between spouses or non-spouses, or to joint tenancy with right of survivorship between non-spouses, or to ownership of real property by one spouse only, or to a life estate in one spouse and a remainder interest in the other, etc.
    – ohwilleke
    Commented Apr 4 at 23:21

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