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One to Buy, Two to Sell?

By
Services for Real Estate Pros with The Law Office of Jonathan Richardson, PLLC

1 TO BUY, 2 TO SELL
TRUE OR URBAN MYTH?

Technically speaking, the statement “one to buy, two to sell” is true. A non-signatory spouse has a marital interest in the property by act of law whether they sign the Deed of Trust or not. However, most lenders in the market today will not approve a loan application if both spouses do not agree to sign the Deed of Trust (among other documents).

This situation is created most often when one spouse applies and is approved for a loan independent of their spouse. For example, John and Jane Doe decide to buy a home. John has a substantially higher credit score than Jane. Consequently, the loan officer securing their loan for them home loan suggests that only John apply for the loan. As such, Jane will not be responsible for repaying this loan, but she still maintains a marital interest in the property.

One restriction that the lender often puts in place is the requirement that both spouses sign the Deed of Trust. This requirement does not enhance the lender’s lien on the property – in fact, it can be argued that the lender receives no advantage whatsoever from this requirement – but they still have the right to require both signatures. Remember, it is the lender’s money at stake and they do not have to loan it unless their particular requirements are met. If the lender requires the borrower’s spouse to sign a portion of the loan package, then that is exactly what the borrower’s spouse will have to do.

North Carolina General Statute § 39-13. 
Spouse need not join in purchase-money mortgage.
The purchaser of real estate who does not pay the whole of the purchase money at the time when he or she takes a deed for title may make a mortgage or deed of trust for securing the payment of such  purchase money, or such part thereof as may remain unpaid, which shall be good and effectual against his or her spouse as well as the purchaser, without requiring the spouse to join in the execution of such mortgage or deed of trust. 

Bud & Beth McKinney
RE/MAX UNITED - Cary, NC
Cary/Raleigh/Apex NC - The Team That Cares, RE/MAX United

Look at you go! :) I guess this is your "area." Keep up the great work. Very helpful blogs ...

Feb 09, 2009 06:09 AM
Everard Korthals
---Preferred Lifestyle Advisors--- - Lancaster, PA
Mountain Realty

Welcome!  If ever you were to have any questions then feel free to contact us and we'll try to help. Please take a look at our blog. for links to valuable information in our blog that you can use to navigate this extensive network.  

Interesting blog article about the difference in marital interest in property and being responsible for paying the loan. We look forward to reading more great articles from you. Btw: love your profile picture.

We hope you have a great day, All The Best- 

Sincerely, ( Active Castellum ( Castellum Realty llc - Lancaster PA Real Estate )

Feb 09, 2009 08:51 AM
Vicente A. Martinez
Prudential Douglas Elliman Licensed Real Estate Salesperson - Woodhaven, NY
Realtor, Brooklyn - Long Island - Queens Homes

Hi and welcome to active|rain.

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Feb 09, 2009 01:29 PM
Sandy Childs
Keller Williams Realty - Spartanburg, SC
Realtor - Spartanburg, SC

Congratulations on joining Active Rain. This is a great professional networking and referral site. Our Team is working here in the Spartanburg / Greenville areas of South Carolina. We would be thrilled for any referrals you might send our way - or any referrals that we could send to you. Hope you enjoy this site as much as I do.

Feb 10, 2009 10:52 AM
Anonymous
Terry

Hello,

I have been researching an issue that maybe you can help me with. I made a bid on a piece of property in NC. The property is owned by Bank of America. It is a forclosure property that  has already been through the forclosure process down at the courthouse steps and now BAC is selling it.

The closing agents informed me the other day that there is a "title defect." The issue is they say, that the wife signed the Deed of Trust, while both the husband and wife are on the Title. The bank forclosed on the Deed of Trust naming both the husband and wife together (I checked the recorders office), however the closing agents say that the forclosure may have been improperly done and that the husband still has rights to the Title.

My question is: Doesn't North Carolina General Statute § 39-13 apply here in this case. That is to say that even though the husband wasn't on the Deed of Trust, that he is still obligated to the Deed of Trust, and that the bank acted properly by forclosing the Deed of Trust against both the husband and the wife?

Also do you see something in what I told you that should constitute a "title defect"?

Any light you could shed to this situation would be appreciatted.

Thank you,

May 10, 2010 01:33 PM
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