Does Your Spouse Have to Co-Sign Your Florida Mortgage?
The Florida Constitution provides strong protections for a person’s primary residence or “homestead” from creditor claims. This can include secured claims such as mortgages. Under the Constitution, a person “may alienate the homestead by mortgage” only when “joined by the spouse if married.” Florida courts have long held this to mean that a homestead mortgage must be co-signed by both spouses, even when only one spouse holds legal title to the property.
Florida Appeals Court Reverses Foreclosure Judgment
The Florida Fourth District Court of Appeal recently reversed a foreclosure judgment as a result of this constitutional provision. In Brown v. Towd Point Mortgage Trust 2017-6, a now-deceased woman took out a mortgage to purchase a home homestead in 1999. At the time, she represented that she was a single person even though she had been married since 1990. Her husband had not signed the mortgage nor was he present for the closing of the sale.
Nevertheless, the woman and her husband lived together in the house. She died in 2020. Payments on the mortgage stopped shortly afterwards. In 2021, the loan servicing company sent a notice to the now-deceased wife informing her of the default. In 2023, the trust that now owned the mortgage note filed a lawsuit to foreclose on the property, naming the husband both individually and as executor of his late wife’s estate.
In response to this lawsuit, the husband argued that the mortgage was void because it had only been signed by his wife. The trust replied that since the wife had taken out the mortgage to finance the purchase of the homestead, it was not subject to the constitutional requirement that her spouse co-sign the note. The trial court ruled in favor of the trust, noting that under Section 708.08(1) of the Florida Statutes, a mortgage “executed by a married woman without the joinder of her husband” was still valid without his consent.
As the Fourth District explained, however, the Florida Constitution controls in this case and it “unambiguously requires a married owner of homestead property to obtain their spouse’s joinder in the mortgage against the property.”
Now, that did not mean that the mortgage was void as the husband argued in this case. Rather, the Fourth District said the mortgage was “ineffective as a lien.” In practical terms, this meant the trust could not foreclose “until either the Husband joined the mortgage or the property lost its homestead status.”
Contact a Davie Homestead Disputes Lawyer Today
Florida’s homestead laws are meant, in part, to protect the spouses and minor children from the sudden loss of their home due to a loved one’s death. But as the case discussed above illustrates, the laws governing the Florida homestead exemption are quite complex, and even experienced judges can disagree on how to apply the law properly. That is why, if you are in this kind of a situation, you need to work with an experienced Davie homestead disputes attorney. Contact Valero Law today at 305-607-7011 to schedule a free consultation. We serve clients in Davie, Broward County, Coconut Grove and Miami-Dade County.
Source:
scholar.google.com/scholar_case?case=11104900891004235140
