Tenancies by the entirety created prior to February 11, 1980 are governed by the common law. "[A] creditor of the debtor tenant husband may take possession of the property for as long as the debtor tenant shall live, subject to the non-debtor wife's right of survivorship." Somerset Savings Bank v. Goldberg (In re Goldberg), 166 B.R. 776, 777-78 (D.Mass. 1994) (citations omitted). Section 1 of G.L. c. 209 "changed the old common law rule and effectively forbids a creditor from making a seizure of the home of the non-debtor spouse."
, In re Calandriello, 107 B.R. 374, 375 (Bankr. M.D. Fla. 1989); In re Hope, 77 B.R. at 471. This cloud on the title impairs his entireties exemption and therefore renders the three judgment liens held by the respondents avoidable under section 522(f). See, e.g., Somerset Savings Bank v. Goldberg, 166 B.R. 776 (D. Mass. 1994); In re Mukhi, 246 B.R. 859 (Bankr. N.D. Ill. 2000); see also In re Calandriello; In re Bradlow, 119 B.R. 330 (Bankr. S.D. Fla. 1990); In re Staley, 95 B.R. 548 (Bankr. S.D. Ohio 1989). Accordingly, an order shall be entered overruling the objections posed by the respondents and granting the debtor's motions to avoid their liens.
The husband, however, is exclusively entitled to control and possess the estate during their joint lives, including the right to alienate his interest, but neither party can act alone to defeat the other's indestructible right of survivorship. Coraccio, 415 Mass. at 148-49, 612 N.E.2d at 653. The sole interest of the wife consists of the right of survivorship and this right is not attachable by creditors nor alienable by her. Although the husband's creditors can attach and execute on his interest, dispossessing both husband and wife, a creditor's interest remains subject to the wife's survivorship right. Coraccio, 415 Mass. at 150, 612 N.E.2d at 653; see also Somerset Sav. Bank v. Goldberg, 166 B.R. 776, 777-78 (D.Mass. 1994). The Bankruptcy Code is preemptive federal law.
Nothing in the language of either § 1 or § 1A reflects an intent on the part of the Legislature to have the election statute operate retroactively to affect a seizure or sale of property that occurred prior to the election. Cf. Somerset Sav. Bank v. Goldberg, 166 B.R. 776, 778 (Bankr. D. Mass. 1994) ("Section 1A literally means that from the date of the election forward, creditors will not be permitted to seize or execute on the property of a nondebtor spouse"). Retroactive applications of the law to property transactions are disfavored.