Legal Question in Real Estate Law in Florida

Re: Transfering property

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Your mother can legally transfer her house to you by executing a Quit Claim Deed. There may restrictions by the current lender who probably has a "Due on Sale/Transfer" clause in her mortgage. Many lenders will make an exception for a family member, however.

I would suggest that you consider doing the transfer at the time of the new loan in order to avoid tax consequences (documentary stamps charged by the State of Florida) on the transfer.

Once the property is in your name (or concurrent with the transfer), you will be able to refinance it in only your name if your credit is sufficient to warrant the new mortgage. If the property is to be your homestead, then your husband will be required to sign the mortgage (but not the note) in order to allow the bank to foreclose if you fail to make payments.

If mom is going to remain in the home, then your course of action may not be wise due to other tax considerations which may have severe consequences. You may wish to read earler questions dealing with this topic. I strongly recommend that you speak with a Florida real estate attorney to review the specifics of your situation.

Scott R. Jay, Esq. 305-249-8000

Scott R. Jay, Esq.

Re: Transfering property

The house can be transferred to you, subject to the mortgage, in your name alone. Your husband need not be included in the Deed. Once you are the owner, you can arrange to refinance it in your name alone, if you have sufficient credit and income. You may need either your mother or husband if you cannot do this alone. I recommend some written and notarized statement from your husband that, once you own it, he will make no marital claims against the equity, nor assert any rights to the house. I also suggest that the Deed provide for a life estate for your mother, to protect her occupancy rights, particularly if she intends to remain there. All of this can be done without an attorney, but I highly recommend using an attorney in connection with the agreement from your husband and to protect your mother's occupancy rights. The few dollars in fees will be worth it to avoid any problems later.

Re: Transfering property

1. yes

2. A lien is not necessary if she tranfers it only to you.

Re: Transfering property

Since she has a mortgage she may be restricted from transfering house to you without first paying it off. Check w/ her bank. She can transfer house just to you and not husband. Will you qualify for a mortgage without your husband's income? I don't understand the last part of your question about having a lien against your husband?? What are you trying to accomplish by a "lien"?