Opinion
CIVIL ACTION NO. 01-10995-RWZ
February 25, 2003
ORDER
Since 1972, claimant Holly Smith ("Claimant") and her husband Sidney Smith have owned and held as tenants by the entirety the property located at 8 Curtis Avenue, Middleton, Massachusetts. In 2002, Mr. Smith was convicted of conspiracy to possess marijuana with intent to distribute and possession of marijuana with intent to distribute in violation of Title 21, United States Code, Sections 841 and 846.
On June 12, 2002, the United States filed a Complaint for Forfeiture in rem against the property under 21 U.S.C. § 881(a)(7), alleging probable cause to believe that the property was used by Mr. Smith in violation of Title 21, United States Code, Sections 841 and/or 846. The parties have stipulated that the claimant is an innocent owner as defined in 18 U.S.C. § 983(d)(2)(A). Claimant has filed a Motion for Summary Judgment alleging that no part of the property is subject to forfeiture. The United States has filed a Cross Motion for Summary Judgment asserting that the tenancy by the entirety ought to be extinguished in order to forfeit Mr. Smith's interest in the property.
The Civil Asset Forfeiture Reform Act of 2000 provides that:
If the court determines, in accordance with this section, that an innocent owner has a partial interest in property otherwise subject to forfeiture, or a joint tenancy or tenancy by the entirety in such property, the court may enter an appropriate order —
(A) severing the property;
(B) transferring the property to the Government with a provision that the Government compensate the innocent owner to the extent of his or her ownership interest once a final order of forfeiture has been entered and the property has been reduced to liquid assets; or
(C) permitting the innocent owner to retain the property subject to a lien in favor of the Government to the extent of the forfeitable interest in the property.18 U.S.C. § 983(d)(5). Contrary to Claimant's assertion that Section 983(d)(5) evinces "a clear congressional intent to respect and give full force and effect to state-law-created property rights, and tenancies by the entireties in particular[,]" a plain reading of the statute suggests the opposite: Congress did intend to allow the enforcement of forfeiture rights against the interest of a person holding property as a tenant by the entirety. See United States v. 221 Dana Avenue, 261 F.3d 65, 74 (1st Cir. 2001) ("[F]idelity to literal language is still worth something."). To the extent the three options listed in the statute override state tenancy by the entirety law, federal law governs. See Cipollone v. Liggett Group, Inc., 505 U.S. 504, 545, 112 S.Ct. 2608, 2632 (1992) (Where state law conflicts with federal law, impedes its objectives or where the nature of the federal regulation does not allow for state supplementation, "we have had no difficulty declaring that state law must yield.").
Having declared that an interest held by a "tenant" in a tenancy by the entirety may be subject to forfeiture, the statute does not define the exact nature of that "forfeitable interest." Notably, the statute does not override the interests in a tenancy by the entirety as defined by the state. In Massachusetts, "[t]he essence of the common law tenancy by the entirety, and the feature distinguishing it from other forms of concurrent ownership, was the wife's inchoate survivorship right, which the common law deemed 'indestructible,' and inalienable except by the express written deed of both husband and wife." Shwachman v. Meagher, 699 N.E.2d 16, 18 (Mass.App.Ct. 1998) (citations omitted). In preserving the concept of tenancy by the entirety to the fullest extent, option C is optimal: Claimant is entitled to retain the property in question subject to a lien on Mr. Smith's right of survivorship in favor of the government. In this way, Claimant's essential right under the tenancy by the entirety, her right of survivorship, remains intact.
The Massachusetts statute concerning tenancy by the entirety, G.L. c. 209, § 1, does not apply because the Smiths took title to their property prior to February 11, 1980, the effective date of the legislation.
Accordingly, Claimant's Motion for Summary Judgment is DENIED and the United States' Cross Motion for Summary Judgment is ALLOWED. Judgment may be entered ordering forfeiture to the United States of Mr. Smith's entire interest in the real estate, his right to survivorship.