Can you sell a house if you are on the title but not the mortgage? Two names were on the title, but only one was on the mortgage when one spouse died.

Q: My stepfather bought a house in Miami in 1999 and he included my mom on the title of the property at that time. It’s not clear to me exactly how they held the title, but I would say it was probably joint tenancy, because percentages of ownership are not mentioned in the deed. 

They divorced in 2007, and we have only recently found out that he passed away earlier this year. A web title search showed that the property is still in his and my mom’s names. Although my mom doesn’t have any loans or mortgages on her name the bank told us that there are mortgages and/or loans on my stepfather’s name. However, they will not share that information with us and required probate documents. 

My questions are: Is the house solely my mom’s now? Is she responsible for mortgages on my stepfather’s name? How do we proceed to sell the house since we live in another country and cannot afford to maintain it? How would we sell it if it has an open lien, for example?

A: It’s quite important to determine how your stepfather and mom purchased the home. While you may not see percentages in a document, that does not mean that they owned the home jointly with rights of survivorship. 

Joint Tenancy with Rights of Survivorship and Tenancy in Common

Let’s recap quickly the two most common ways that people own their homes: joint tenancy with rights of survivorship and tenancy in common. (By the way, there are many other ways that people can own and hold title to their homes but these two are the most common ways.)

When you hold property as joint tenants with rights of survivorship, when one owner dies, the other owner becomes the automatic owner of the home. When two owners own a home as tenants in common, they each own a specific percentage ownership in the home. It could be 50/50 or it could be 99% to one owner and 1% to the other owner. If the document does not assign a percentage, they each own equal shares in the home.

In some states, you must say that you are going to own the home as joint tenants with rights of survivorship, otherwise the presumption is that you will own the home as tenants in common. If you want one owner to own a 22 percent share in the home, the deed must specify that one owner has a 22 percent share and the other a 78 percent share, or whatever numbers are agreed upon by the parties.

Most married couples own their homes as joint tenants with rights of survivorship. We’ll assume that your mother and stepfather did this and when your stepfather died, your mom became the sole owner of the home. However, while she might be the sole owner, that does not mean that she would own the home free and clear of any debts that are attached to the property.

Can You Sell a House If You Are on the Title but Not the Mortgage?

When your stepfather and mom purchased the home, they might have taken out a mortgage together at that time, and may have later taken out a second mortgage later or an equity line of credit. In either case, when your mom inherited the home (if she was a joint owner with rights of survivorship), she would own the home but when she sells it, she’d have to pay off the mortgage(s).

And, yes, it can be complicated to deal with a lender now that your stepfather has died, because the lender might only be able to speak with the borrower under the loan terms (that would be your stepfather), not the homeowner. 

You should speak with a real estate attorney and ask them for help in finding out more information about the home and any loans or liens attached to it. A quick check by an attorney with the public records office might provide quite a bit of insight into what your mother has inherited. If your stepfather has debts attached to the property, and those debts are worth more than the home’s value, your mom wouldn’t get any cash once the home is sold. 

From our perspective, the question is whether your mom is on the hook for any of the loans placed on the home while they both owned the home. And, if your stepfather placed loans on the home after they were divorced, your stepfather may have become the sole owner of the home after the divorce.

Where to Find Answers About Ownership, Mortgage Loans and Liens on the Property

You can try to get answers to these questions yourself by digging through the public record documents (some of which may even be online, but are available at the recorder of deeds office nearest to the property), but the legalese of some documents may make it hard for you to figure out what’s what. If so, look for a real estate or estate attorney who can help make sense of this situation.

Finally, if it turns out that your mother does own the property, and the liens against the property don’t amount to much (unless there are new loans against the property, the original loan from 1999 might be nearly paid off at this point), then she should look to hire a top-notch agent (be sure to interview several from different companies to gain more realistic perspective of the local market conditions and the property’s true value) in the area who can handle the sale of the property. This may include cleaning out the property and making necessary repairs or you may just choose to unload the house in “as is” condition.

You should explore what fixing up the home for sale might cost and what additional value might be reaped from such an exercise against the time and annoyance factors. A good agent should be able to help and will fully earn the commission you’ll pay. And, that real estate attorney you hired earlier to investigate ownership should be able to help close the property and get the funds transferred to you now that you live abroad.

Good luck.

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