LawRefs Customized Legal Information
Attorney Renee C. Walsh

Title Company Forces Married Persons to Take Title in Spouse’s Name

Inquiry: Can a married women in Michigan own property solely in her name? My daughter is in the process of buying a home in Michigan. The mortgage will be in her name only. The Michigan title company closing the transaction is directing her that if a person is married and buying property in Michigan they must take title “by the entireties.” The husband that is not employed, has not worked for a year, and has a poor credit history and has nothing to do with the mortgage MUST have his name on the title.

Response: The concern for this inquirer is that should the couple split for any reason, the spouse would be entitled to half the property and have no responsibility for the mortgage.

The daughter may take the property by herself. The title company is arguably illegally discriminating on the basis of gender.  They are misconstruing the law which provides that a tenancy by the entirety arises presumptively in any conveyance made to husband and wife. The key is that the conveyance has to made “to husband and wife”. It does not arise merely because a conveyance is made to a wife who is married.

However, if the title company is forcing this, all that would need be done is to file a quit claim deed granting property from husband and wife to wife only. A tenancy by the entirety cannot be terminated by involuntary partition and therefore, it would take a mutual agreement in order to negotiate and execute the quit claim deed. Alternatively, the buyers could not use the title company to close the transaction but rather hire a lawyer to take care of that. The lawyer could then draw up the deed.

THE LAW:  

Michigan Compiled Law, 557.21 provides for the status of property acquired by woman after marriage. If a woman becomes entitled to or acquires, after marriage, real property through gift, grant, inheritance, devise, or other manner, that property is and shall remain the property of the woman and be a part of the woman’s estate. She may contract with respect to the property, sell, transfer, mortgage, convey, devise, or bequeath the property in the same manner and with the same effect as if she were unmarried. The property shall not be liable for the debts, obligations, or engagements of any other person, including the woman’s husband.

MCL 565.221 applies to male grantors: All written instruments conveying or mortgaging real estate or any interest therein, hereafter executed, shall state whether any and all male grantors, mortgagors, or other parties executing the instrument are married or single, and the register of deeds of the county in which the instrument is offered for record shall refuse to receive the instrument for record unless it conforms to the provisions of this act. If the instrument has been recorded in the office of the register of deeds of any county without the instrument showing the marital status as herein required, an affidavit stating the facts, executed in conformity with the provisions of Act No. 123 of the Public Acts of 1915, as amended, being sections 565.451a to 565.453 of the Michigan Compiled Laws, may be recorded in the register’s office. Upon the recording of the affidavit showing the marital status of the male grantor, mortgagor, or party executing, on the date of the instrument, the record of the affidavit and the record of the instrument shall be effectual for all purposes of a legal record, and the record of the instrument and affidavit or a transcript thereof may be given in evidence in all cases, and the instrument shall be construed to be as valid and effectual as if it had contained a statement showing the marital status of the male person or persons executing it.

MCL 565.201 provides for the requirements for recording with register of deeds to provide for a man’s marital status.

Discussion:

  1. Dear scared78:

    Generally speaking, the signature is required so that the spouse is on-notice of the loan though the spouse is not borrowing. In the event of divorce, any right the spouse had to the property would be subject to the bank’s priority.

  2. I purchased a home in my name alone last year. I am now refinancing my home and was just recently married. They say he has to sign as the non borrowing spouse. What does this mean if we ended up getting divorced? I live in Michigan.

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