Trish Sifka—Senior Attorney, National Legal Research Group
An English Judge and Jurist, Sir Edward Coke, declared in 1604: “[T]he house of everyone is to him as his Castle and Fortress as well for defence against injury and violence, as for his repose[.]” This famous quote from the Court of King’s Bench has been simplified to essentially mean that “every man’s home is his castle” and, thus, deserves special protection. Sir Coke stated this as part of his ruling in Peter Semayne v. Richard Gresham & Estate of George Berisford. Gresham and Berisford were joint tenants of a house in Blackfriars, London. Berisford died while still owing a debt to Semayne, so Semayne sued for writ of attachment against the home.
In Virginia, real property held as tenancy by the entirety is especially sacrosanct. Where a tenancy by the entirety in the fee simple is created, the property is completely immune from the claims of creditors against either husband or wife alone. Rogers v. Rogers, 257 Va. 323, 512 S.E.2d 821 (1999); Pitts v. United States, 242 Va. 254, 408 S.E.2d 901 (1991). “The tenancy by the entirety may be severed only by mutual consent of the spouses or by divorce.” In re Bunker, 312 F.3d 145, 151 (4th Cir. 2002); see also In re Sampath, 314 B.R. 73, 92 (Bankr. E.D. Va. 2004) (“The tenancy by the entirety estate retains its full vitality in Virginia.”). Accordingly, a spouse cannot waive contest to forfeiture of real property held as tenancy by the entirety in a plea agreement because that would result in severing of the title without the other spouse’s consent. The Virginia Supreme Court reaffirmed state support of this view in Jones v. Phillips, ___ Va. ___, ___, 850 S.E.2d 646, 650 (2020) (discussing the 2000 General Assembly’s breaking of new ground by "authorizing a husband and wife to convey certain tenancy by the entirety real estate to their joint revocable or irrevocable trust, or in equal shares to their separate revocable or irrevocable trusts without losing its tenancy by the entirety status” in Va. Code Ann. § 55.1-136). Immunity for tenancy by the entirety held by spouses flows from the nature of the property classification as a matter of law (unlike the innocent owner defense available in forfeiture cases under Va. Code Ann. § 19.2-386.8, which requires that a spouse establish lack of culpability for property to not be subject to seizure). However, in United States v. Franco, No. 5:14CR00011, 2017 WL 3187392 (W.D. Va. July 26, 2017), a federal court determined that such state designation for protection of real property would not shield the real property from civil forfeiture under federal forfeiture statutes.
State forfeiture actions can be viewed differently with the absence of federal preemption at issue. Virginia’s 2020 amendments to its state civil forfeiture statute heightened general protection of a property owner’s rights by requiring a stay of forfeiture action until the owner of the property is “found guilty of any offense that authorizes forfeiture of such property[.]” Va. Code Ann. § 19.2-386.1(C) (emphasis added). Critically, this amendment also did not remove the above immunity for real property held as tenancy by the entirety. Further, the Virginia General Assembly in 2020 solidified the government’s higher burden in the seizure of real property versus personal property. Even in drug-related transactions, “real property shall not be subject to lawful seizure unless the minimum prescribed punishment for the violation is a term of not less than five years” in state forfeiture actions. Va. Code Ann. § 19.2-386.22(A)(i). Accordingly, to be in conformity with the language and intent of these new amendments to Va. Code Ann. § 19.2-386.1 and the nonseverability of tenancy by the entirety properties, a Virginia state court arguably cannot grant forfeiture of real property unless both spouses are found guilty or have pleaded guilty to the appropriate offense granting forfeiture of such property.