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REAL ESTATE 30: Mortgage invalid because wife did not join her husband in signing it.

In 1979, plaintiff purchased real estate pursuant to a land contract. Plaintiff married her husband in 1981. In 1985, plaintiff conveyed the property to herself and her husband via a recorded quitclaim deed.

In 1992, the husband unilaterally granted a mortgage on the property in favor of himself to secure a debt. The mortgage described the husband as a single man and plaintiff’s name does not appear anywhere in the recorded document. Under the mortgage’s terms, payment was due in March 1993.

Plaintiff and her husband paid off the land contract, and in 1994 the property was deeded to plaintiff. The husband died in 2015, leaving plaintiff as the sole remaining owner of the property.

In November 2017, plaintiff brought a suit to quiet title and to extinguish defendant’s mortgage. Defendant filed a counterclaim, requesting that the trial court declare the mortgage valid and enter a monetary judgment against plaintiff for the unpaid balance of the mortgage plus interest.

Plaintiff moved the trial court for summary disposition under MCR 2.116(C)(7), (8) and (10). She argued that she and her husband co-owned the property as tenants by the entirety and that the mortgage was invalid because she did not join her husband in signing it.

In response, defendant contended that the mortgage was valid because plaintiff subsequently ratified it. The trial court agreed with plaintiff and granted her summary disposition and quiet title. The court also determined that defendant’s counterclaim was barred by the statute of limitations.

In Michigan, a conveyance of real property to a husband and wife is presumed to create a tenancy by the entirety. Each spouse is considered to be an owner of the whole property, and neither spouse has an individual interest in the property separate from the other spouse.

When a married couple holds real property as tenants by the entirety, neither spouse acting by themselves can alienate or encumber their interest in the property.  A husband or wife must receive the consent of their spouse before conveying or encumbering an interest in the property.

Are you involved in a real estate dispute in Michigan? Are you seeking an efficient and effective resolution to a property litigation matter?

To schedule a free consultation with one of our experienced real estate litigation attorneys, contact our law office in Plymouth, Michigan.

Contact Aldrich Legal Services

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