Louisiana Joinder of Spouses
R.E.P. Topic by Practice (Question)
R.E.P. Topic by Practice (Question)
If a non-title holding spouse is required to join in the execution of a deed or a security instrument, please describe. Any analogous rights, such as those in a civil union or equivalent, should also be addressed.
In Louisiana, property is either community or separate. The marital status and the separate or community nature must always be stated in a deed of purchase. If the person is married and there is no mention of status, the property is presumed “community,” the spouses are presumed to own together, and both spouses must sign. For a Purchase or Refinance, a non-borrowing/non-vested spouse does not have to sign the security instrument or the deed. Your title examiner should clearly designate who the owner of the property is or will be. The deed of acquisition should clearly state that the property is the separate property of the acquiring spouse, purchased with separate funds and under the separate administration and control of that acquiring spouse. In order to convey the property, the non-acquiring spouse does not need to sign the deed if they are not on title and the recitations of non-ownership outlined above were made.
Louisiana law does not recognize the common law estates in property such as a joint tenancy, a tenancy in common, or a tenancy by the entirety.
Louisiana does recognize components of property ownership known as "usus," which is the right to use the property, "fructus," which is the right to use the fruits produced by the property, and "abuses," which is the right to alienate the property. A "usufruct," combining the components of usus and fructus, allows a person the right to enjoy the property while ownership of the property is vested in another. Ownership in division is the ownership of something by two or more persons, generally presumed to be by equal shares. All owners must sign a sale or a mortgage, including usufructuaries and naked owners, unless the usufructuary is given the power to sell or mortgage in his or her acquisition.
Frequently Asked Questions
For a Refinance, does a non-borrowing/non-vested spouse have to sign the security instrument? If they are required to sign, is there any specific language that should be on the security instrument? No, if the spouse is not borrowing and does not own an interest in the property, there is no need for that spouse to sign, even if the spouse lives in the property. Your title examiner, who must be a Louisiana licensed attorney, should clearly designate the property owner.
For a Purchase, if a spouse is a non-borrower who will not be deeded on to the property, are they required to sign the security instrument? No, same as above.
In order to convey the property, does spouse sign the deed if they are not on title? No, not if they are not in title.
In what manner is a title commonly held in this state? (for example, Joint Tenants, Tenants in Common, Joint Tenants with Rights of Survivorship?) None of these terms apply in Louisiana. Property is either community or separate.
If silent, what is the presumption? The marital status must always be provided in a purchase. If the person is married and there is no mention of status, the property is presumed “community,” the spouses are presumed to own together, and both spouses must sign.
How does each of these “vestings” affect the attachment of liens to the property? Liens, called “privileges” in Louisiana, are of two sorts, statutory and contractual. Statutory liens, such as that in favor of workmen and material suppliers, can attach to the property even if the services were ordered by a non-owner. However, the lien must identify the proper owner of the property to attach. Contractual liens, such as mortgages, attach when the proper owner signs a document, such as a mortgage, and the document is recorded. Where property is community, both spouses must sign the mortgage, and the signature of one spouse may not be effective, even as to that one spouse’s share.
If individuals took title as “husband and wife,” does that create “tenancy by the entirety”? Will judgments against the individual attach? This would identify the ownership as “community,” and judgments against either spouse would attach to the entire property, not just that spouse’s half.
Do Purchase Money Mortgages have priority over all judgment liens? No, there is no special or higher rank for PMMs filed against real estate under Louisiana law over and above that of a mortgage. The contrary applies under Louisiana’s UCC law which is in line for personal property.
Is there a Homestead exemption in this state? What does it mean in relation to the title? There are two “homestead exemptions” in Louisiana. The first deals with a special ad valorem tax break for home owners who live in their property. The first $75,000 of homestead value is exempt from real estate taxes. When ordinary people talk about their “homestead exemption,” they usually refer to this tax break. The second “homestead exemption” deals with bankruptcy, and allows a person who files bankruptcy to shield the first $25,000 of value from creditors who did not obtain a waiver of this “homestead exemption.” Thus, the owner of a homestead must waive this second “homestead exemption” in the mortgage, and most Louisiana mortgage forms contain such a waiver in boilerplate language. Under laws in existence in prior times, but now repealed, a non-owner spouse was required to join in the mortgage for the purpose of waiving this second homestead exemption. Although the law no longer requires this, some old forms still have the language for the non-owner spouse to join in the signing of the mortgage. Rather than argue with the lender on this point, it is often easier to have the non-owner spouse sign.