Legal Question in Real Estate Law in Florida

Re: Buying a House

NOTE: This communication is not intended as and should not be interpreted as legal advice. Rather, it is intended solely as a general discussion of legal principles. You should not rely on or take action based on this communication without first presenting ALL relevant details to a competent attorney in your jurisdiction and then receiving the attorney's individualized advice for you. By reading the "Response" to your question or comment, you agree that the opinion expressed is not intended to, nor does it, create any attorney-client relationship, nor does it constitute legal advice to any person reviewing such information, nor will it be considered an attorney-client privileged communication. If you do not agree, then stop right here, and do not read any further.

As a result of Florida's homestead protection laws, your husband is required by possibly every lender to join in (and execute) the mortgage, as well as several other forms including the Truth In Lending. He will not have to sign the Promissory Note, thus he will not be responsible for any monies if you fail to pay. This allows the lender to foreclose on the property in case of default by you in the repayment of the loan.

Your husband may claim some right to the property at the time of the divorce, particularly if monies earned during the course of the marriage are used in the purchase in any form. This includes subsequent payments for the mortgage. He has a right to claim a share of any equity in the residence. Alternatively, you would be wise to get him to execute a Quit Claim Deed to you on the property you are purchasing at the time he signs the mortgage in order to extinguish any possible claim.

I strongly suggest that you consult a qualified real estate lawyer to handle the closing on your behalf to avoid serious issues at a later date.

Scott R. Jay, Esq.