Can you deed someone off a part of land, if the land it is tied in with a mortgage?
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Can you deed someone off a part of land, if the land it is tied in with a mortgage?
Have 16 acres in TX that my partner and I purchased in 1993 (both of us are listed on land title and home). After property was paid off, we used 8 acres (collateral) to build a house. We are currently separated and have mutually decided he would keep the house and an acre, and I can keep the rest. However the house and acre appraised for only 18.5% over payoff and in order to refinance in his name only, we needed it to be 25% over. So we have to wait a year or so to try again. We are going to deed him off the 8 acres not tied into the mortgage loan for me to start living on. Can we deed him off all 15 acres even though 7 acres will be still tied in with the loan? That way if he refinances or decides to sell the house and acre, and the 7 acres is released from the current mortgage contract it will already be in my name only. I am aware that if he was to lose the house (foreclosure) that the additional 7 acres would be lost to me as well. The reason for needing the whole 15 acres sectioned out, is due to our timber exemption (have to have a min of ten acres to keep)
Asked on April 20, 2011 under Real Estate Law, Texas
Answers:
M.T.G., Member, New York Bar / FreeAdvice Contributing Attorney
Answered 13 years ago | Contributor
The legality and logistics off all of this is best asked to an attorney in your area who can look at the pluses and minuses and the requirements of both the timber exemption and of the refinancing. Also, you should each have a lawyer to discuss this with and to come to a written agreement as to the matter, as agreements regarding real property that are not made in writing violate what is known as the statute of frauds. If you are both informed as to your rights and your liabilities and you still agree to do with the property as you discussed here then that is your choice. The law does not interfere in a contract that has been negotiated openly and freely between the parties. Good luck.
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