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David L
David L, Attorney
Category: Business Law
Satisfied Customers: 3255
Experience:  Corporate and Business lawyer since 1997
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My husband

Customer Question

My husband and I are getting a divorce and have a rental property in VA. Do I have to sign the lease for any potential renter that wants to lease. I don't want to do business with my husband because I am not on the new joint rental account and I know he is at least 2 or 3 months behind on paying the mortgage of that house. So, I don't feel comfortable signing on any lease. could you please advise.
Submitted: 4 years ago.
Category: Business Law
Expert:  Fran-mod replied 4 years ago.
Hi, I’m a moderator for this topic and I wonder whether you’re still waiting for an answer. If you are, please let me know and I will do my best to find a professional to assist you right away. If not, feel free to let me know and I will cancel this question for you. Thank you!
Customer: replied 4 years ago.
I waited for a long time so turned the computer off. yes, I do need an answer.
Expert:  Fran-mod replied 4 years ago.
Sometimes, finding the right Expert can take a little longer than expected and we thank you greatly for your understanding. We’ll be in touch again shortly.
Expert:  David L replied 4 years ago.
Hello and thank you for asking your question. I apologize for the delay. My name is XXXXX XXXXX I will be assisting you. A lease would require the signature of all owners. If the property will be rented after the divorce and the property remains in both names, then both parties will have to sign. The way around that would be to get your husband to execute some document giving you the full authority to manage the property on your own. If you can get him to agree to that, then you would not require his signature each time you lease the property.

I hope this information is helpful but please feel free to post follow up questions or comments if I can assist you further.
Customer: replied 4 years ago.
What I was trying to figure out is it unethical to advertise for a tenant when the landlord knows they are behind in the mortgage. I guess I should send a statement to my husband that he is responsible for renting the property or just quick claim the deed to him. I don't want to sign a lease when he knows he is behind in the mortgage.
Expert:  David L replied 4 years ago.
Thanks very much. I appreciate your clarification. Until such time as the property would be foreclosed and taken back by the bank, there is nothing prohibiting the owner from renting the property and collecting rent (unless it violates a term of the mortgage). It would also not be considered unethical. In fact, many people who can't afford their mortgage choose to rent to give them the opportunity to collect income which they can then use to keep the mortgage current. If your husband is willing to have you quit claim the property to him, he will then be the sole owner and can rent without your signature. However, if you are a party to the mortgage, keep in mind that a quit claim deed will not release you from the mortgage. He would have to refinance the property in his name alone in order to have you released from the current mortgage.
David L, Attorney
Category: Business Law
Satisfied Customers: 3255
Experience: Corporate and Business lawyer since 1997
David L and 6 other Business Law Specialists are ready to help you
Customer: replied 4 years ago.
So, for now if I don't want to sign a lease with him, as we are only in a separation state, is there a certain form I send him. I was told that Bof A can now sue the owners if they accept the rental payments and don't pay the mortgage. That's why I don't want to sign a lease with him.
Expert:  David L replied 4 years ago.
Thanks again. There is no form you need to send him. You can simply tell him (maybe in writing is a good idea to have it documented) that you are unwilling to sign any lease agreement as you do not wish to be held liable for any issue arising regarding the lease or his failure to forward rental payments to the lender.
Customer: replied 4 years ago.
David, do you know if that's correct, that BofA can use the owners if they take the rental payments and don't pay the mortgage. The top realtor in williamsburg told me that.
Expert:  David L replied 4 years ago.
It is unlikely that the owners would get sued for the rental payments. More likely, the lender would sue to foreclose. During the foreclosure process, the lender could ask for a court order requiring the owner to turn over all rents to the court. There may also be a provision in the mortgage stating that during a time of default, any rents collected become the property of the lender. Quite honestly, while this happens all the time on commercial properties where the rents are substantial - a shopping center with multiple tenants, for example - I can't say I've seen it happen in a residential foreclosure scenario. That's not to say it can't or doesn't happen, but I'm not seeing it during residential foreclosures.
Customer: replied 4 years ago.
Thank you
Expert:  David L replied 4 years ago.
You're very welcome. Best of luck.

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