Conveyance of Homestead Property

The term homestead is used to describe the requirement, in certain situations, that both spouses join in a conveyance or encumbrance of the family home.  The concept of “homestead” embodies the set of rights, ownership, interests and protection afforded to natural persons by constitutional provisions and statutes.  It also embodies the right to secure the home and its necessary appurtenances from attachment by creditors and prevent the alienation or encumbrance by one owner which could be detrimental to another protected claimant of the homestead property.

Homestead rights did not exist under the common law.  Such rights are peculiar to the United States and exist only by virtue of statute or constitutional provision.  Irrespective of the manner of spousal land ownership recognized in each state, generally, there exist rules that govern the conveyance of homestead property by a spouse(s).  The conveyance of a homestead generally nullifies the homestead right on such premises, even if the sales proceed may still retain the homestead character.

If the mode of alienation of homestead property is expressly prescribed by law, then any other kind of alienation shall be prohibited. There shall not be an operative conveyance or effectual release of homestead property unless the method prescribed by statute has been strictly pursued.  Reformation of a conveyance or encumbrance of homestead property shall be decreed to correct the description of the land.

Without the existence of a valid marital agreement recognized by law to effectively constitute a waiver by the non-owning spouse, no spouse may convey or encumber homestead property without the joinder or consent of the other spouse.  The homestead of a family shall not be conveyed or encumbered by a spouse without consent of the other spouse.

The consent shall be evidenced by each spouse joining in the conveyance by signing their names thereto, and also by acknowledgment thereof. Consent of a non-owner spouse shall not be required where the homestead property is conveyed or encumbered by an owner spouse who holds title to the property as sole and separate property.

If instruments of conveyance lack the required joinder of husband and wife which is viewed as void, it cannot be cured by occurrences after the execution.  The husband or wife or a third person shall assert the invalidity of a conveyance of the homestead property by only one of the spouses such that no deed had been executed.  However, the spouse who conveys the property shall not be entitled to relief for failure to get the other spouse’s consent if such relief would be inequitable since s/he used fraud in conveying the property.

Adult children and heirs of a grantor who does not participate in a grant of homestead property shall assert the invalidity of a conveyance attempted by the husband or wife alone.  The statute protects non-conveying spouses, does not protect creditors or bankruptcy trustees standing in their shoes with the means to avoid troublesome encumbrances.

A property described in excess of the statutory amount in the instrument of conveyance, and that property is owned by both spouses as joint tenants with a right of survivorship, is void in its entirety, as to both the homestead property and the excess.  If a husband alone executes a conveyance of a tract of land, and the tract includes both the homestead exemption and land in excess of the exemption, then the conveyance is invalid as to the homestead premises but, valid as to any excess.

A contract to convey the homestead property should be consented to by both husband and wife.  Conveyance by a single spouse is ineffectual even if his or her title to the property is complete and absolute.  The claim of homestead can be successfully asserted where such property is shown as the separate property of one spouse.  If a husband and wife own the property as joint tenants, then either may insist against the other that the premises under the homestead right are not transferable except in the manner provided by the statute.

A purported conveyance of homestead property by one spouse to another is effectual although not joined in by the other spouse, since the statutes refer only to conveyances to third persons.  However, a conveyance of homestead property by one spouse to another is void where it is given in consideration of a promise to do something.

A conveyance of the homestead property by one spouse to the other spouse and children without the joinder of the other spouse is valid as to the other spouse, but invalid as to the children.  Some authorities hold that such a conveyance is void in entirety.

Transfers by one spouse without joinder by the other spouse, in trust for the other spouse and the children are valid in some states and void in other states.  If one spouse abandons a homestead, moves from the premises without any intention to return, and enters into a marital settlement agreement under which the other spouse retains the residence, the other spouse may alienate the property without the signature of the abandoning spouse, even though the divorce decree is not final.

A spouse abandoning the homestead shall sell a homestead to which s/he has sole title.  However, if a spouse has not abandoned the conjugal relationship and a conveyance of homestead property is signed only by other spouse without the knowledge or approval of the former, then such conveyance is void.

If a homestead right is extinguished or abandoned by one of the spouse, then its conveyance by the other is valid.  Some states are of the opinion that where a spouse voluntarily abandons home, the other spouse is entitled to convey the property.  Some states follow that conveyance by a spouse following separation is valid, whereas others hold it invalid.  Furthermore, a spouse is estopped to make a claim based on the non-joinder of other spouse after a divorce.

In the absence of specific provisions relating to conveyance, joinder of an insane spouse is not essential.  However, some jurisdictions apply that the rule of joinder of a spouse in a conveyance of a homestead is not excused by his or her insanity.  In such circumstances, alienation of a homestead property becomes impossible.

There are some statutes that specifically allow the husband or wife of an insane spouse to sell, convey, or mortgage the homestead.  Some of the statutes provide procedures by which the sane spouse may obtain a court order authorizing a conveyance.  However, under such statutes, it is required that all statutory requirements are strictly complied with.

In addition to this, there are some other statutes that provide for alienation of the homestead of an insane person by joinder of the guardian with the sane spouse.  Usually, such statutes require that the signature of both the guardian of an insane spouse and the signature of the sane spouse is essential to effect a mortgage or conveyance of homestead land.

Generally, in order to convey the homestead, both spouses must actually join in the deed and not merely sign and acknowledge it.  Some statutes specifically provide that the husband and wife may convey their homestead by separate instruments or by a single instrument.

A conveyance or encumbrance of a homestead shall not be valid under such statutes unless and until the owner’s spouse executes the same or a “like instrument.”  “Like instrument” means only that the spouse need not sign the same deed as the owner in order to join in the conveyance.

The conveyance to be binding upon the consenting spouse should have been executed voluntarily and should not be the result of acts that overcome his/her volition of freedom of will.  Therefore, if a spouse is induced by fraud by the other, in order to sign a deed conveying the homestead property, s/he is entitled to have the deed set aside and the rights restored, except against the one who took the instrument in good faith and without notice of fraud or imposition.

A deed in which both spouses do not join is not void but, merely makes it inoperative and such a conveyance shall be ratified by the other. A spouse’s failure to protest a conveyance and silence in the face of knowledge of such a conveyance, does not amount to joinder with the other spouse.  Any ratification of the conveyance shall be made only through the execution of an instrument.  In certain circumstances, after the death of a spouse the other spouse shall ratify a deed in which s/he did not join.

A spouse who fails to join in execution cannot cure the invalidity of the instrument by his/her subsequent actions.  Also, a spouse is not permitted into court for consenting to a correction of a deed in order to allow the inclusion of the homestead.  Such a correction of deed would be possible only by executing a new deed.


Inside Conveyance of Homestead Property