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LawTalk, Attorney
Category: Real Estate Law
Satisfied Customers: 34884
Experience:  I have 30 years legal experience. Additionally, in CA I held a Real Estate Broker's license.
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I have a house I need to sell. My husband and I are separated

Customer Question

I have a house I need to sell. My husband and I are separated and he has moved back to his original country in Belgium. Before he left he signed over a quitclaim deed and a POA. Now the title company is telling me this isn't enough, that I also need a Homestead affidavit signed by him and notarized. He and I do not have contact any more and if we did it's not in the best of terms. Why is the quitclaim deed and POA not enough? Now it seems I can't sell my home.
Submitted: 5 months ago.
Category: Real Estate Law
Expert:  LawTalk replied 5 months ago.
Good afternoon Heidi,I'm Doug, and I'm very sorry to hear of your situation. My goal is to provide you with excellent service today. In order to give you a clear and concise answer, I will need some additional information about the circumstances, please. 1. Does the quitclaim deed read from you and your husband to you? Or is it just from your husband to you?2. Does the quitclaim deed have his mailing address on the quit claim deed? Doug
Customer: replied 5 months ago.
Hi Doug,
Thank you so much for taking the time to look at this, I really appreciate it, as I'm not sure now what to do.The quitclaim deed is from my husband to me. It states: date, between (husband name), Grantor of (house), city, state of Idaho and (my name), Grantee of (house).And no his mailing address is not on the deed. As he has left the country in April, 2015. With no financial help from him what so ever.Heidi
Expert:  LawTalk replied 5 months ago.
Good morning Heidi, I see a couple of problems with the transaction that you and your husband did---presumably without an attorney or without any legal advice. Under Idaho law, ...the homestead of a married person cannot be conveyed or encumbered unless the instrument by which it is conveyed or encumbered is executed and acknowledged by both husband and wife, except that a husband and wife (or both jointly) can make and execute powers of attorney for the conveyance or encumbrance of the homestead (ID Code Section 55-1007). I presume that your POA was not a specific POA giving you the specific right to transfer his homestead. For this reason, you will have to get his signature on the Homestead Affidavit in order to sell the property. Additionally, whether it becomes an issue when you try to record I don't know for sure. It depends on the records clerk. However, Idaho law also has another requirement that was apparently missed. When submitting the deed to the county recorder for recording, the grantee’s name and complete mailing address must be present on the instrument (ID Code Section 55-601). In conclusion, despite the fact that the homestead affidavit will not be recorded, it is required by the Title Company to ensure that they are protected from a future homestead claim by your husband following the sale of the property. Unfortunately, you will have to arrange to get the affidavit signed by your husband. You may reply back to me using the Reply link and I will be happy to continue to assist you until I am able to address your concerns, to your satisfaction.I hope that I have been able to fully answer your question. As I am not an employee of JustAnswer, please be so kind as to rate my service to you. That is the only way I am compensated for assisting you. Thank you in advance.I wish you and yours the best in 2016,Doug
Expert:  LawTalk replied 5 months ago.
Good afternoon Heidi,Do you have any additional questions that you would like me to address for you?In case you would like a phone call to further discuss these issues you have raised, I will make that offer to you. You are certainly not obligated to accept a call offer, but many people do find it helpful for clarification purposes, as well as to allow them to ask additional questions.As I have provided you with the information you asked for, would you please now rate my service to you so I can be compensated for assisting you?Thanks in advance,Doug

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