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HOMESTEAD RIGHTS IN REAL ESTATE
by James B. Spina
The law relating to “Homestead Rights” is
somewhat complex, and few people would find an in-depth
understanding useful. This simplified information omits many
exceptions and details. It is presented to help the home seller or
buyer understand documents and events at closing.
HOMESTEAD PROPERTY. The most
common (but not the only) situation that creates Homestead Property
when all three of these conditions exist:
1. A married person owns a home, and
2. his or her spouse is not an owner of the
property, and
3. they have at some time lived together as
husband and wife in that home.
An example: A woman buys a house and moves in
before she is married. It is titled in her name only. The woman
marries. Her new husband moves into the house and lives with her.
The home is now the “marital homestead,” often referred to
“Homestead Property,” in which the husband has certain limited
rights. These are known as “Homestead Rights.” These rights do not
allow the husband to sell or mortgage the home, but they can be
sufficient to prevent its sale without his consent.
MORTGAGE.
When the owner mortgages Homestead Property, the non-owning spouse
must sign the mortgage in order to waive any claim of Homestead
Rights against the bank. Without both spouses’ signatures, the bank
could have a difficult time taking the property in the event of
foreclosure.
SALE. When Homestead Property is transferred,
the non-owning spouse must sign the deed in order to transfer all
rights in the property to the buyer. Without both signatures, the
buyer could have title problems with the house in the future.
A LIMITED EXPLANATION OF A
COMPLICATED LEGAL MATTER. Please note that this is a greatly
simplified description of Homestead Rights. Its purpose is only to
provide a basic understanding of an important real estate title
issue. Under no circumstances should this be relied upon for
decisions of real estate ownership, transfer, mortgage, or any other
title matter. It is important to consult a competent attorney any
time real estate title could be an issue.
708-647-1900
jbs@SpinaLaw.com
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