Quitclaim Deed Does Not Change Mortgage
Ask the Real Estate Lawyer: Real Estate Law Q&A
REM #LAW 663
By Ilyce R. Glink and Samuel J. Tamkin
Summary: A reader signs a quitclaim deed transferring
his share of a home to his ex-wife. He now realizes that he is still listed
on the mortgage and it is hurting his credit rating. Sam and Ilyce explain the
differences between quitclaim deed, title and deed of trust.
Q: Two years ago I stupidly signed a quitclaim deed, giving my half of our
house to my ex-wife.
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However, my name remains on the mortgage even though she is making the payments.
I now realize this was a mistake. It is even affecting my credit and my ability
to rent an apartment.
How do I get my name off of the mortgage? And, would it be possible for me
to undo the signing of the quitclaim deed to reclaim my half of the value of
A: You can’t undo the transfer of the home to your ex-wife. If you signed
and delivered a valid document, you can’t now come back and undo it. If
you were not divorced when you signed over your half of the house to your ex-wife,
did the divorce decree take into consideration your ownership of the house?
If you were already divorced, the transfer of your interest in the house is
a gift to your ex-wife.
Some people mistakenly confuse their ability to transfer their interest in
a home with their financial obligations under a mortgage and loan for a home.
In some cases, homeowners believe that the term “title” to a home
is the same thing as the mortgage to the home.
For the most part, when a person buys a home and gets financing for the purchase
of the home, the person who bought the home is in title to the home and the
lender has a mortgage that gives that lender the right to foreclose on the home
if the homeowner fails to make payments under the mortgage.
While in some states the term “deed of trust” is used, the deed
of trust is equivalent to a mortgage for most purposes and the homeowner is
still in title to the home.
When the homeowner transfers title to the home and does not pay off the mortgage
or deed of trust, the ownership of the home transfers but the old homeowner
remains responsible under the original mortgage or deed of trust.
You transferred your ownership interest but remained on the mortgage or deed
of trust. The only way you can remove your name from the mortgage or deed of
trust is for your ex-wife to refinance the home and get a new loan in her name
alone. You can attempt to contact the lender and have your name removed, but
that rarely if ever works. Of course, if your ex-wife sells the home and pays
off the lender, your name would finally be off the loan.
Your best bet is to work with your ex-wife and use any good will generated
by the transfer of your interest in the home to her to convince her to refinance
the loan and take you off the old mortgage.
Samuel J. Tamkin is a Chicago-based real estate attorney. Ilyce
R. Glink’s latest book is 50 Simple Steps You Can Take To Sell Your
Home Faster and For More Money In Any Market. If you have questions for
them, write: Real Estate Matters Syndicate, PO Box 366, Glencoe, IL 60022
or contact them through Ilyce’s website www.thinkglink.com