Tenants by Entireties and Expectation of Privacy

By James W. Mallonee

Privacy Expectations:
Imagine being in your backyard and your neighbor places a camera on their roof top that is pointed into your yard and recording what you are doing. Would that annoy you to the point of bringing a law suit against your neighbor to enjoin them from having the camera operational? That was the question put forth before the courts in a recent case.

The tortious claim is called “intrusion upon seclusion.” The facts of the case initially involved a privacy fence that two neighbors agreed to put up for the purpose of privacy, but more importantly to grant one neighbor to allow their dogs to roam. We’ll call that a common fence to contain another’s dogs.

As with most things between neighbors, what started out as a good thing turned sour and the neighbor with the fence terminated the right of the other neighbor from using the fence to contain his dogs. In essence, the neighbor with the dogs was told to have his own fence put in. Eventually, the neighbor with the dogs (presumably in retaliation) put up a camera which was pointed into the other neighbor’s yard to the point that a majority of the entire back yard was viewed.

The end result was a lawsuit demanding that the camera be removed. The neighbor with the dogs won the initial courtroom drama to keep the camera which was based solely on the fact that the recordings were not published to anyone.

The common law elements used by the courts in these types of cases is: One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person. As you can see there is nothing in the elements of the law which requires the invasive act be published to anyone. More importantly, what is considered offensive to a reasonable person is always a problem of definition because what may be offensive to one person is not to another.

The outcome of the case was appealed and the Second District Court of Appeal got it right by noting that there is nothing in the law that says the recording has to be published. The outcome of the case was returned to the court with instructions to rehear the case to determine the level of offensiveness. Thus, the next time you use your pool in the backyard and there sits a camera watching you, consider the intrusion upon seclusion law.

Tenants by the Entireties:
It has long been thought that to obtain the asset protection given to a husband and wife you needed to identify the asset was held jointly with your spouse and titled in such a manner as to make it known you are married. The titling term used is “tenants by the entireties.” In 2001, the Florida Supreme Court case of Beal Bank SSB v. Almond & Associates, dispelled the requirement for some form of nomenclature identifying husband and wife to be included in the title of property; but title companies still required the terms “husband and wife” when it came to real estate.

In a recent case, Ramos v. Estate of Eleida Ramos, where the husband and wife purchased real property; but the title agency did not list them as husband and wife or any nomenclature stating they were married created a family fight after both the husband and wife died. The initial thought by one of the step children was that the estate was tenancy in common requiring each parent’s interest in the real estate to be separately administered.

The Third District Court of Appeal found otherwise, stating that there has never been a requirement that husband and wife (or any other description) be used in a title to gain the tenants by the entireties reference. The only requirement is that they be married at the time of purchase and remain married throughout the ownership of the property. This ruling is a game changer where property was inadvertently not titled with the husband and wife nomenclature and the individuals ultimately die. If it can be proven that the two parties were in fact married at the time of purchase with no intervening divorce, then the notation in the property title showing husband and wife is no longer required to assure tenants by the entireties for asset protection. In essence, at the death of the first spouse, the property automatically goes to the survivor.

This article is intended for informational use only and is not for purposes of providing legal advice or association of a lawyer – client relationship

James W. Mallonee (Jim Mallonee) is a graduate with a B.A. degree from the University of South Florida and a Master of Science degree from Rollins College in Winter Park, Florida. He obtained his Juris Doctorate from the University of the Pacific, McGeorge School of Law in Sacramento, California. Prior to returning to Florida to practice law, Mr. Mallonee was employed by Intel Corporation for 22 years in such locations as New Jersey, Florida and California.

In addition to being a member of the Florida Bar since 2003, Mr. Mallonee serves on the Charlotte Community Foundation Committee for asset allocation and teaches Business Law at State College of Florida. Mr. Mallonee is also on the Board of Directors for the Military Heritage Museum located in Charlotte County, Florida.

His firm practices law in the following areas: Probate, Wills & Trusts, Guardianships, and Litigation in the areas of Real Estate, Guardianships and Estates. The firm has two locations in Venice and Port Charlotte, Florida.

946 Tamiami Trail, #206
Port Charlotte, FL 33953
(941) 206-2223

871 Venetia Bay Blvd., #225
Venice, FL 34285
(941) 207-2223