By Chesley Payne
A question that often comes up in homes sales in Alabama is who is the proper party to sign a deed or mortgage to the property? In Alabama, a property used for a personal residence is known as a homestead. If the persons inhabiting that homestead are married, then Alabama law requires that in the event the home is sold or mortgaged that the marital couple must both sign the deed or mortgage to the property.
Section 6-10-3 – Homestead exemption – Alienation by married person.
No mortgage, deed or other conveyance of the homestead by a married person shall be valid without the voluntary signature and assent of the husband or wife, which must be shown by his or her examination before an officer authorized by law to take acknowledgments of deeds, and the certificate of such officer upon, or attached to, such mortgage, deed, or other conveyance, which certificate must be substantially in the form of acknowledgment for individuals prescribed by Section 35-4-29.
This is true even in the event that both spouses are not included on the original deed conveying the property into one spouse’s name. The purpose of the law is obvious. It is intended to prohibit one spouse from selling or refinancing the marital residence without the knowledge and consent of the other spouse.
The one exception to this rule is if one spouse is purchasing a homestead and obtains financing for the funds to purchase the homestead. In this event, the mortgage taken by the lender is known as a “purchase money mortgage”. A purchase money mortgage is a mortgage that takes priority over most other liens or interests in the property. Included in the priority given to a purchase money mortgage is the power to overrule the homestead requirement of Section 6-10-3. This is why in some closings one spouse may sign the mortgage but not the other. In the event you have any questions about this area of law, contact the attorney of your choice.