Posted by Steven Telkamp on 6/26/12 1:55pm
Msg #424705

NON-Borrowing Spouse

Found this on the internet. I did not create this table. I hope this will be helpful to all SA's out there. As always, do not rely soley on the information contained, consult with legal counsel.

MARITAL SIGNATORY REQUIREMENTS
If both husband and wife appear on title, both must sign documents (mortgage, rescission and
TIL).
If only one spouse is on title to property being mortgaged, the following applies:
(i) If the state is a community property state (property is owned in common by husband
and wife), then both husband and wife must sign documents (mortgage, rescission and
TIL).
(ii) If the state retains dower or curtesy rights (rights in estate of husband/wife), both
husband and wife must execute documents (mortgage, rescission and TIL).
(iii) If the state is a common law jurisdiction (what’s her’s is her’s, what’s his is his), both
parties do not need to sign documents. However, many states have additional
requirements for property that is homestead (owner-occupied). Check for these
additional requirements.
In other words, unless a state is a common law jurisdiction without applicable homestead
exemptions, a non-owner/non-borrower spouse must sign.
In all other states the general rule is to have both spouses execute the security instrument.
Exceptions to this general rule are footnoted below. However, such exceptions should be
considered on a case by case basis as additional issues may arise. For example, in
community property states it can be difficult to determine whether property is truly “sole and
“separate” or whether it belongs to the community. Even if record title to real property is held
by one spouse as his or her sole and separate property, the other spouse can at a later date
allege that the real property was previously commuted to community property by action or
agreement
STATE COMMUNITY
PROPERTY
DOWER/CURTESY
RIGHTS
COMMON LAW
JURISDICTION
HOMESTEAD REQUIREMENTS/OTHER*
Alabama X Both spouses must sign
Arizona X1 Consent of a non-owner spouse is not
required where homestead property is
conveyed or encumbered by an owner spouse
who holds title to the property as sole and
separate property.
Arkansas X Both spouses must sign.
California X2 Borrower’s homestead rights in CA do not
defeat a consensual lien
Colorado X Both spouses must sign.3
1 Consent of a nonowner spouse is not required to convey or mortgage property by an owner spouse who holds title to the property as his sole and
separate property. In such case, the nonsigning spouse should execute a disclaimer of interest (Quitclaim Deed, Interspousal Transfer Deed, etc.) in the
property. However, if lender is looking to community property, such as wages or salary of the borrower spouse, for repayment of a mortgage loan, the
non-borrower spouse must execute a marital community joinder to legally bind the marital community to the repayment of the mortgage loan.
2 Both husband and wife must execute deed of trust which is to encumber property of the community. If record title to real property is held as a spouse’s
sole and separate property, signature of nonowner spouse is not required. However, nonowner spouse should execute a disclaimer of interest in the
property (Quitclaim Deed, Interspousal Transfer Deed, etc.)
3 Automatic homestead exemption is waived as to both spouses even if only one spouse signs the deed of trust (i.e. non-owner spouse’s signature not
required). Title Company will sometimes require a written waiver of homestead. However, if non-owner spouse has recorded a declaration of
homestead in the real estate records (should be reflected on commitment), the signature of both spouses is required on the deed of trust or there must
be a separate written waiver of homestead rights signed by the non-owner spouse.
STATE COMMUNITY
PROPERTY
DOWER/CURTESY
RIGHTS
COMMON LAW
JURISDICTION
HOMESTEAD REQUIREMENTS/OTHER*
Connecticut X
Delaware X
District of
Columbia
X *Spousal signatures required, regardless of
how title is held.
Florida X Both spouses must sign.
Georgia X
Idaho X Both spouses must sign.4
Illinois X Both spouses must sign.
Indiana X
Iowa X Both spouses must sign.
Kansas X Both spouses must sign.
Kentucky X Both spouses must sign.
Louisiana X5
Maine X
Maryland X
Massachusetts X Both spouses must sign.6
Michigan X Both spouses must sigh if a non-purchase
money mortgage (for example, refinance).
Minnesota X Both spouses must sign, unless a purchase
money mortgage (applies regardless of
whether property is homestead or nonhomestead).
Mississippi X Both spouses must sign.
Missouri X Both spouses must sign.
Montana X Both spouses must sign.7
Nebraska X Both spouses must sign.
Nevada X Both spouses must sign.
New
Hampshire
X Both spouses must sign unless a purchase
money mortgage.
New Jersey *Both spouses should sign. While dower and
curtesy rights have been abolished as to
property acquired after 5/29/80, a new right,
known as the right of joint possession of the
principal marital residence attaches to
property acquired on or after 5/29/80.
New Mexico X8
New York X
North Carolina X *Both spouses must sign to waive elective life
estate.
North Dakota X Both spouses must sign.9
Ohio X10
Oklahoma Both spouses must sign.11
4 Non-owner spouse need not sign deed of trust if property is individually owned and not the marital residence. In such case, the nonsigning spouse
should execute a disclaimer of interest (Quitclaim Deed, Interspousal Transfer Deed, etc.) in the property to also ensure waiver of community property
interest.
5 Some title companies may require spouse to intervene under the mortgage, even if property is listed as sole and separate property.
6Non-owner spouse need not sign if he or she has not declared a homestead estate. Title Company will sometimes require a written waiver of
homestead. If non-owner spouse has recorded a declaration of homestead in the real estate records (should be reflected on commitment), the signature
of both spouses is required on the deed of trust or there must be a separate written waiver of homestead rights signed by the non-owner spouse.
7 Non-owner spouse need not sign so long as neither spouse has executed and filed a Declaration of Homestead on the real property. Title Company
will sometimes require a written waiver of homestead. If non-owner spouse or owner spouse has recorded a declaration of homestead in the real estate
records (should be reflected on commitment), the signature of both spouses is required on the deed of trust.
8 If property is community property or separate property held by the spouses as cotenants, both spouses must sign the mortgage in order to perfect the
lien, except in the case of purchase-money mortgages. If title is held individually, usual practice is to have non-applicant spouse quitclaim property to
applicant.
9 Homestead rights may be waived with specific language in the mortgage. Our standard FNMA docs do not include such language; therefore, the nonowner/
non-applicant spouse must sign security instrument.
10 There is a homestead exemption at Ohio Rev. Code § 2329.66. However, it does not affect or invalidate or impair the lien or a judgment rendered on
a mortgage. Id. at § 2329.661.
STATE COMMUNITY
PROPERTY
DOWER/CURTESY
RIGHTS
COMMON LAW
JURISDICTION
HOMESTEAD REQUIREMENTS/OTHER*
Oregon X
Pennsylvania X
Rhode Island X
South Carolina X
South Dakota X Both spouses must sign.
Tennessee X Both spouses must sign.12
Texas X Both spouses must sign.
Utah X Both spouses must sign.13
Vermont X Both spouses must sign.14
Virginia X15
Washington X16 Both spouses must sign.
West Virginia X Both spouses must sign.17
Wisconsin X Both spouses must sign, except for purchase
money mortgage transactions.
Wyoming X Both spouses must sign.
11 A lender may not rely on an affidavit stating the property is not homesteaded. Hensley v. Fletcher, 172 Okla 19, 44 P2d 63 (1935). Therefore, a
lender must obtain signature of both spouses, even is property is purportedly not the borrower’s homestead.
12 Waiver of homestead rights should include waiver language in the mortgage. Our standard FNMA docs do not include such language; therefore, both
spouses should sign the security instrument if the property to be mortgaged is the principal residence of either spouse or the spouse’s children. If the
property is not the homestead of the aforementioned parties, it is advisable to have parties execute a written waiver of homestead
13 Both spouses must sign if they have homestead rights. Such rights must be made of record and would be disclosed on a title report.
14 A non-borrowing spouse must join in the mortgage in order to perfect the lien, except in the case of a purchase money mortgage. However, even in
the case of a PM mortgage, any future advances or “accruals” will have priority over the lender’s lien.
15 Some title companies will require both spouses to sign the security instruments because a spouse has the option to take a statutory interest in the
property of the deceased spouse in lieu of taking under the decedent’s will.
16 It is very difficult in Washington to prove the separate character of property, therefore, both husband and wife should always execute the security
instrument.
17 Both signatures are required, unless the debtor owning the property has notified his or her spouse prior to thirty (30) days of the time of conveyance.
W. Va. Code § 43-1-2(b), (c).

Reply by Clem/CA on 6/26/12 2:04pm
Msg #424706

It is much simpler to just follow the instruction sheet....

Reply by HisHughness on 6/26/12 3:34pm
Msg #424720

So far, you are the leading candidate ...

... for longest post of 2012.

Reply by JanetK_CA on 6/26/12 3:36pm
Msg #424722

In terms of general practice - since any exceptions are outside of our authority - I find it very common here in California to see a married person holding title as "Sole and Separate", without the spouse having to sign anything.

I've also run into situations where a person owned property before getting married, then when they later wanted to refinance, the spouse had to sign an Interspousal Transfer Deed (sometimes a Quit Claim Deed), to retain vesting as "Sole and Separate". Typically, once that Deed is recorded, the spouse no longer needs to sign anything related to that property, e.g. if the owner refi's or sells, in my experience. No RTC, no nothing. However, I did have one this month where the lender wanted the spouse to sign all the legals anyway, even though it was vested as "Sole and Separate". So ya never know...

Following instructions is ALWAYS a very good idea! But a little basic knowledge of how things work in your state can be helpful in knowing when to question something. Mistakes do happen, as we know all too well!

Thanks for the post, Steven.

Reply by Janice Bennett on 6/26/12 9:48pm
Msg #424759

Because of Florida's homestead laws both spouses have to sign the mortgage, even if its investment property and not their primary residence. I recently had two signings that lender only had the husband's name on all the documents, so you can't just go by your instructions. You have to know what your State's laws are. In Florida, both spouses have to sign whether or not the lender included both names on the documents. If one spouse applied for the loan and the loan was based on his income, the other spouse doesn't have to sign the note, but always has to execute the mortgage, TIL and HUD. I didn't know about the recission documents, but it sounds like a good idea.

Reply by Linda_H/FL on 6/27/12 5:29am
Msg #424776

Re: NON-Borrowing Spouse...not true

"both spouses have to sign the mortgage, even if its investment property and not their primary residence"

Homestead laws do not apply to investment property - they only apply to primary residence ... if, in your experience, both signatures have been required on investment property then it's a lender requirement and has nothing to do with Florida Homestead laws.

NOBS in Florida, on primary residence, have to sign the Mortgage and all Riders, TIL, RTCand all property/owner affidavits. They may be required to sign the Itemization of Amount Financed and Signature/Name Affidavits. They do not sign the HUD - they're not the borrower.

Reply by Linda_H/FL on 6/27/12 5:54am
Msg #424777

As a P.S., it also bears noting..

"the husband's name on all the documents, so you can't just go by your instructions. You have to know what your State's laws are"

It's not our call to make, no matter how much we think we know. If hiring party, whether SS or TC, tells us NOT to have them sign, that's what we do. We can try to get them to see the light, but in the end it's their call, not ours. Yes, knowledge of the law can save a deal, but improper application of the law can also kill a deal just as quickly.

JMO.

Reply by Ruth A Bowers on 6/27/12 8:05am
Msg #424786

Unless I take a class in Law , I am not worried about all that , because it is up to the Preparer to know the law and make sure the doc's are correct. I follow my instructions and let the Legal team do their part. I only get paid to watch , collect id's and sign . I'm not an Attorney .

Reply by Donna McDaniel on 6/27/12 8:36am
Msg #424787

As a notary, yes.

As a signing agent, the hiring parties expect you to let them know if there is an error in the docs or a NBS has not been included when they should be.

IMO, that's not practicing law, just being a professional SA.

Reply by Barb25 on 6/27/12 10:36am
Msg #424798

Re: As a notary, yes.

So what you are saying is that you would tell your boss (the hiring party) that you are going to do it your way regardless of what they are telling you? I would do it their way but make sure you cover yourself in an email that you are following their instructions so it does not come back to bite you. I am not of course talking about any conflicts pertaining to notarization.

Reply by Donna McDaniel on 6/27/12 11:06am
Msg #424807

Sorry if you misunderstood my post.

"So what you are saying is that you would tell your boss (the hiring party) that you are going to do it your way regardless of what they are telling you?"

Really???

I'm saying I communicate to the SS or TC if I see any potential problems so they can decide what to do next.

Reply by Barb25 on 6/27/12 1:32pm
Msg #424836

Mea culpa, I am sorry I misunderstood your post.

My apologies. I agree 100%.

But as I wipe the egg off my face, I do in fact ask for an email or such when they tell me something I know later they "may" change their mind about telling me.... How is that for a sad comeback... LOL

Reply by JanetK_CA on 6/27/12 5:57pm
Msg #424866

Re: As a notary, yes.

Donna, when I first read this, it also sounded to me like you were countering Ruth's comment to Janice, so I misunderstood you, as well.

I think there's an enormous - and very important - difference between bringing something to the attention of our client for them to respond to (which I agree with completely), and what was implied in a post above by saying that we should know our own state's laws and act accordingly. IMO, it's critical to distinguish between doing what we think we know and following instructions, even when we think they may be wrong. I believe following instructions is being a professional SA (again, with the caveat that excludes things related to our state's notarial law, where we are completely responsible.)