A common question asked of any real estate attorney is can you remove someone from a deed without their knowledge?
Property ownership is perhaps one of the most critical and complex legal matters many of our clients encounter.
For this reason, we always stress the importance of transparency, education and consent of all co-owners when assisting with services such as drafting transfer deeds.
Nevertheless, we inevitably are approached about removing a co-owner from the title of real property without their knowledge or consent.
This article serves to provide a brief explanation related to transfer documents and the limitations of making changes without the consent and involvement of all co-owners.
Can you remove someone from a deed without their knowledge?
Florida, as with most other states, prohibits the removal of a co-owner from the title of real property without their consent.
Altering property deeds must be done with the approval of all co-owners to allow for transparency and avoid fraud and must be permissible by law.
In Florida, each owner may only consent to the transfer of his or her own interest in real property.
As such, attempting to remove a co-owner without their knowledge and consent may be considered fraudulent and result in unintended legal consequences, including both civil and criminal charges.
Not only will such action potentially violate criminal laws, but a wrongfully removed co-owner may also take civil legal action to contest or undo an alteration.
When recorded, transfer deeds become public records, and any changes made to a deed or ownership of real property can be easily ascertained. Recording ensures transparency and provides the most up-to-date ownership information. As such, if an owner were to be secretly removed from a deed, they may have legal recourse against the wrongdoer.
It is advisable that co-owners regularly check public records for any unauthorized changes to the ownership of their real property.
Such changes may be in the form of a recorded property deed which is a legal document that transfers ownership of real property from person to person.
While property transfer deeds must meet certain statutory requirements in Florida, they are often drafted as a warranty deed or quitclaim deed. A warranty deed expresses a guarantee that the transferor has the exclusive right to transfer the entire property and has clear ownership of the property, whereas a quitclaim deed offers no protection or guarantee of ownership.
For this reason, quitclaim deeds are used in only a few circumstances such as transfers between family members. Nevertheless, quitclaim deeds are often used to make unauthorized changes to the ownership of real property and should be given the highest level of scrutiny when subject to a title search.
What does it mean if your name is on a property deed?
When someone’s name is on a property deed, it usually means that they have some form of legal right to the property. Ownership may take various forms such as sole ownership, joint tenancy or tenants in common. For a more in-depth review of these types of ownership, explore our prior article on the matter.
Sole ownership is the simplest form of real estate ownership in that all rights are vested in a single person. However, it comes with very limited tax or estate planning benefits.
Tenancy in Common is when two or more persons co-own the subject real property. These co-owners are generally not married to each other. In such cases, each co-owner owns a separate and specific interest in the property that may not be equal shares. There is no right of survivorship of a co-owner, so tenants in common may leave their ownership interest to their heirs rather than a co-owner.
Joint Tenants with Rights of Survivorship are similar to tenants in common but they each own an equal and undivided share of the property. Each co-owner has the right of survivorship in that if one owner passes away, their interest is divided equally among the surviving owners.
Tenancy by the Entirety is similar but used to describe co-ownership between married individuals.
Having one’s name in any of the above-stated capacities means that an individual has certain rights and responsibilities associated with the subject real property. These may include:
- The right to use, possess and use the property within the parameters of applicable laws and regulations.
- The right to transfer interest in the property through a sale, gift or inheritance.
- The financial responsibility and obligation for the payment of taxes, insurance, mortgages etc.
- The liability of harm caused to others such as accidents, injuries etc. that occur on the subject real property.
How to remove the name of a deceased co-owner from a deed?
The most common instance in which a party may legitimately need to remove the name of a co-owner is as a result of the death of a spouse. Practically speaking, this is typically done only at times when the property is being sold or refinanced.
Nevertheless, specific steps should be taken to ensure that the removal of such name is done properly.
Obtaining a copy of the death certificate would be one of the first necessary steps. This allows third-party professionals, such as lawyers or title agents, to confirm the death of the co-owner and may need to be recorded in the public records.
Thereafter, the vesting deed should be reviewed to determine the manner in which the property is held.
With spouses, it is likely to be tenants by the entireties which means the surviving spouse would be the rightful owner of the deceased spouse’s interest. However, if the property is owned as tenants in common, then it must be determined that any subsequent deed is transferring the property to its rightful owner.
When the new deed with specific language is prepared and executed by the remaining owners, it may need to be recorded along with an affidavit (such as an Affidavit of Surviving Spouse) to officially remove the deceased individual’s name.
It is important to consult with a professional to ensure that this process is properly completed.
So, at the end of the day, can you remove someone from a deed without their knowledge?
While the answer is no, it is important to have a better understanding of the totality of how deeds work so that you can better protect yourself and your family with respect to your real estate holdings.
Property ownership may change for several reasons, including death, divorce or sale of the property.
When removing an individual’s name from a deed, it is important to follow the necessary procedure for the basis of the removal.
If proper procedures are not followed, the transfer may be deemed improper or even illegal.
It is advisable to seek guidance from a real estate law professional to ensure compliance with applicable regulations and to avoid the common pitfalls of going it alone.
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