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When a Player Absent from the Table Has Cards in the Game

When most of us hear the word “homestead”, we picture a Conestoga wagon racing across the Old West to capture a plot of land. That term really was accurate during the 1800’s in the west; the Federal Homestead Act did jump-started private ownership of parcels of land in the western states. Florida was not part of that, and though we also use the term in Florida, it means something entirely different.

In Florida, homestead is actually Florida’s most widely recognized confusingly holographic legal principal. It means many different things, and just when you think you understand it, squiggle the facts a little and it takes another meaning.

The Florida Homestead I write about today is the one legal concept that stops dead more Florida closings than any other. I can’t count the number of times a realtor or closing agent has called, or advised a client to call, with this problem: “My husband/wife will not own this property with me because _____.” The blank is filled with an explanation: “we’re separated, our funds are separate, and I have been approved for the mortgage by myself,” or “we’re getting divorced and I want to buy my own home,” or “he/she is legally incompetent, and I need to sell the house (or mortgage it), and my spouse cannot sign and is not on the title.” If the property is the house the person lives in, it is protected for each spouse by Florida Homestead. That which protects the house from conveyance, either by deed or mortgage, is the status of marriage, not the status of title. No married person can convey the homestead without the spouse’s consent and joinder in the conveyancing document, in writing, regardless of whether the property is owned in both names, or in only one.

Florida Homestead is the reason that regardless of the compelling reason one spouse wants to mortgage or convey the home they live in, even if owned only in that spouse’s name alone – the home simply cannot be conveyed without consent of the other. The message for mortgage companies, realtors, and closing agents is clear: Regardless of how they hold title, if any one member of a couple seeks to buy, sell, or mortgage a house, condo unit, or townhouse, the absent spouse is a necessary person in the deal. “Homestead” has many distinctly different applications in Florida. We can discuss those in another article. For now, if you remember that the marital status of the person means everything when conveying or mortgaging a property that is or could have been lived in by either party, the property may be homestead. If you convey a homestead property by deed or mortgage without consent of both spouses, your conveyance is void.

In Florida Homestead, the spouse is always a player. If you know or suspect that she or he is not at the table, stop the game.

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