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. I bought my house in 2011. A year later, my fiance at the time moved in with me. Another year later I refinanced the house, took some money out for needed renovations, and then added her on title via quit claim deed after closing with the promise she will be paying her half of the mortgage payments (Dec 2013). We recently broke off the engagement and now she is refusing to get off title, move out, or even buy me out. I have made more than 95% of the mortgage payments through out the whole time she was here. I am offering her some money to avoid courts and attorney fees but she simply states she will stay here rent free until she saves enough money and then would want half the equity in the house.

    Is this right? Is she entitle to half the equity? Can I evict her and on what basis should I file the claim? We both live in MI.

    • Dear Gem:

      If she’s on the deed, she can’t be evicted. Consider getting her recorded admission that your agreement was that you would sign over title based on her promise to pay half of the mortgage. (It is not illegal in Michigan to tape record a conversation in which you are a participant, without the other participant’s knowledge.) Even without the recording, you are forced to sue in district court for breach of contract and unjust enrichment. Once she sees the legal paperwork/lawsuit, maybe she’ll settle. Any general practitioner should be able to help.

      If all else fails, stop making the mortgage payments and move out before it shows up as a negative on your credit report. When the banks foreclose, maybe she will now consider that she is not going to get a free ride from you, and she will give up her rights.

  2. My now ex-boyfriend and I got a house on a land contract. My ex-boyfriend wants to refinance the house in his name. Do I have to be present at the closing to sign off my rights to the house? I live in MI.

    • Dear Stephanie:

      No, you do not have to be present. There are ways to do this, such as granting someone a power of attorney to act in your place. Also, the bank could provide you with any documents that you would have to sign and you could sign and return them. I recommend contacting the bank to see what protocol they use when a party cannot be present. It will likely be a power of attorney.

  3. After having to file chapter 13 bankruptcy my wife and I decided to surrender house I had purchased before our marriage and she bought a house under only her name on mortgage. Now we are having to move because of job relocation and I wonder if I am entitled to any of the money once the house is sold? We both contributed to monthly household expenses and bought when market was at its lowest so it will sell for a nice profit. Aren’t assets acquired during marriage considered joint unless I signed away rights. Or would this only be an issue if for some reason we got divorced in future, could I then make a claim for my half of money. I just don’t want her to lose all money gained until we find a new house, so if we both had say neither could spend on silly things.

    • Dear Thom:

      It is correct to conclude that assets purchased during a marriage are considered marital property (joint) unless they are intentionally kept separate. As an attorney I would tell my client that the profit from the sale of real property purchased during the marriage is to be split equally. In divorce, the courts attempt an equitable division of any and all marital assets.

  4. HuntingProp says:

    I am purchasing hunting property with no house with my father in MI. We have acquired a mortgage together to purchase the property. We are both married and just our names are on the purchase agreement and the Mortgage. The title company is telling us that we need to have our spouses sign at the closing, what gives? Neither of the purchasers will have this as a primary or principal residence. Is there a way around this?

    • Dear HuntingProp:

      Yes, ask for an “attorney packet” marked up with where signatures would be required, for your attorney to review prior to the closing. Take a look at all the papers (with or without an attorney). Confirm with the title company that the spouse is not signing as to the loan, but merely as to notice of the loan.

  5. Confused Help says:

    My husband and I after 3 years of marriage are about to close on a home in MI. He has been handling all the mortgage/financing aspects since I do not currently work! He just informed me that I will not be on the mortgage or the title and not to worry since It is Marital Property! I said I want to be on the title and he blew me off and said I have no worries and that he is an attorney and knows what is right! Should I consult my OWN attorney or is it considered my home too if anything should happen?!

    • Dear Confused Help:

      If only one spouse gets the mortgage in their name, that frees up the financial situation for the other spouse to get credit in the future. It is common, especially where one spouse isn’t working or has poor credit because that spouse’s inclusion could be detrimental to loan approval. IT is true that if the property is shared, it will be considered marital property in a divorce, however, for broader protection, what is typically done is that the one spouse gets the mortgage and title in their name, and the other later adds their name to the title via Quit Claim Deed.

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