In Florida, a married couple in title to a parcel of land forms what’s known as a “Tenancy by the Entirety”. This form of tenancy or ownership, in effect, severs individual rights and replaces it with joint ownership (the husband and wife as a couple own the property and act as one entity). From a lien standpoint, this means that judgments filed against one of the spouses does not attach to the property – it must be filed against both the husband and wife to be considered.
A Title Agent will need proof that the Tenancy by the Entirety is still valid (the couple is still married), this comes in the form of a Continuous Marriage Affidavit. Liens that will not attach if filed against (naming as defendant) only one spouse include:
- Judgments (not in favor of the USA)
- Child Support Liens
- Tax Warrants
Other liens take priority to a Tenancy by the Entirety and would still attach if filed against only one spouse, including: Federal Tax Liens, Judgments in favor of the USA and Code Endorsement Liens. Additionally, property specific liens such as condominium liens, mortgages and construction liens run with the property and are not affected by tenancy status.
Most underwriters will allow a Continuous Marriage Affidavit to be used even if the couple was not married at the time they took title.