Legal Question in Real Estate Law in Virginia

Re: Quickclaim Deed

I saw your question and a reply to it somewhat by accident. Of course you need to speak with a VA lawyer on this issue. However, since NJ also permits a married couple to hold title as tenants by the entirety, so I have some familiarity with the issues.

I have a question for you. Why do you want to do this?

You don�t hint at any divorce or separation, so I�ll assume that this is not the reason. It seems to me that you and your spouse may be giving up some important rights to your mortgagee if you take title in your name alone. Currently, she has an (1) undivided half interest in the property and (2) the right of survivorship that cannot be defeated by your creditors.

If you defaulted on the mortgage today, the mortgagee could not foreclose your wife�s interests because she did not give the mortgage. She would still have her undivided right to the property and she would still get title to it all if you should die. You could still live in the house as her guest. In NJ, a mortgagee in that position does not even have the right to current possession. That makes the mortgagee�s interest far less valuable and therefore makes them more likely to entertain a deal that is favorable to both of you (or to your wife and your estate).

All that might change if you held the property in your name alone. Certainly, she would have given up all of her interest in the property. Additionally, both of you would be in a weaker position with respect to the mortgagee because your entire interest could be foreclosed in the event of a default. Should you die with her as your survivor, your property would pass as part of your probate estate and be subject to the claims of your creditors. That would not be the case if you continue to hold as tenants by the entirety; in that case, title transfers automatically to your wife by operation of law at the time of your death. It would not be subject to claims by your creditors (although your wife may be liable to pay some of your debts such as medical expenses.because of the marital relationship).

Neatness should not be an issue for you. I�m not sure what motivated the mortgagee to take a mortgage on your interests alone, but that is their problem, not yours. Before you do anything like a quitclaim deed, you should consult with a VA attorney who understands your situation and the details of VA real property law. If you cut corners on this, both you and your wife may be seriously disadvantaged.

Re: Quickclaim Deed

This type of conveyance can be tricky. If you and your wife jointly hold title to the property by the entireties, my understanding is that each of you would need to execute a quitclaim deed simultaneously transferring your respective interests in the property to you as the sole owner in fee simple in order to secure a legally proper conveyance and to have your spouse's name removed from the deed. The executed deeds would then, of course, need to be recorded in the land records of the appropriate circuit court.

You would be well advised to consult with a title company on this matter or an attorney who specializes in real estate transactions.