Ownership Question

Asking for our 51 unit HOA in Florida:

HOA docs say only homeowners have a vote and can run for board positions. One of our HOA board members is technically not a homeowner as his wife is the deed owner of record.

Opinions?

TIA

The answer to this probably lies in how Florida handles property of married couples. If your HOA has an attorney on retainer I'd recommend a phone call to him.

In some (community property) states, both partners are joint owners of property acquired during marriage unless there is some special agreement.

In some non-community-property states the partner not on the title still has an ownership interest (for example, you can't sell the property without their involvement).

What kind of state are we talking about? Do you have an excess of volunteers?

California is a community property state and the person(s) listed on the Grant Deed is the owner of record. They would be the same person listed on the Note and Deed of Trust. There could be a variety of reason why a spouse is not listed on the Grant Deed or Note, maybe poor credit.

If the governing docs state a Board member MUST be an owner, then the spouse should not be eligible to run for the Board. I had this in my former HOA where a spouse not listed on the Grant Deed, Note or Deed of Trust and was allowed to be appointed as a Board member who then subsequently started a lawsuit costing the HOA $250K, because they had their name quit claimed onto the property. IMO, a person not responsible fore the mortgage is also not responsible for the assessments and therefore not eligible to be a Board member. As far as I am concerned their status would be that of a renter.

What are Florida's joint tenancy laws? If someone is married, usually joint tenancy applies and the spouse should be recorded on the deed.

As the owner of a property management company in California, I handle change of ownership all the time. The document I rely on is the Grant Deed and a Title Report, both will have the exact same information on both documents. The name on the Promissory Note will also be the same as the Grant Deed and will also be the same as the Uniform Residential Loan Application, Fannie Mae 1003. Therefore, how would the HOA know that the spouse, not on any of the documents referenced is an owner and therefore, eligible to be on the Board of Directors?

What documentation?

I am involved with three homes, two my wife owns and one that we both own together. I am NOT a legal owner in the two. Community property and homeownership are two different animals. As I mentioned, there is a reason why one spouse or the other is NOT on title.

Every state has different laws but, under common law, community property DOES equal ownership. That is the whole point of community property.

Anyone who wants to deny property ownership rights, such as serving on a board, based on the name not being on the title should consult an attorney first. In the end, the only opinion that matters is those of higher courts that set precedents.

On VA loan, (not Virginia), they require the spouse not on the deed to sign a quitclaim and that is recorded as a "Intra-Family Transfer Or Dissolution".Most HOA's don't have access to title searches and title reports and therefore wouldn't know.

I have have this come up and received two "legal" opinion, from two different law firms. One said yes and the other said no.

The one that said yes, was litigating a lawsuit for the HOA where that specific person wanted to get on the Board to further the lawsuit. The law firm allowed it and profited by $250K.

The other firm said no, they weren't an owner on record, although they quit-claimed themselves after the fact. Quit-claimed in that situation, similar to the VA loan is having or not having interest in the property "after" the fact, when the home is sold, death of spouse, or divorce of spouses. The law firm involved in that opinion is the one everyone here uses to cite California law.

Quit Claims are not recognized by title companies. If a married couple divorced and owned a home together, in order for one spouse to be taken off the loan would be to refinance the property which would generate a new grant deed. As a management company, that is what we rely on for ownership within a HOA.

Even though your name is not on the loan, she should have you added to the deed. I think the term is survivor-ship, or something like that. I cannot speak for Texas law. In Az, if you are married when purchasing it, it's joint property. You would be the owner.

Richard,
I have not looked at the Deed or Title paperwork since we moved back in June of 17. I did ask that I be added to the deed when we started the process but when I pay the mortgage every month it is addressed to my wife alone.

I understand the problem that could arise. If I were to ever run for office in this new community the PM would probably look at the ownership of the property and they would only see my wife's name.

What would happen if the property was paid off and she was listed on the last mortgage?

Florida state law is specific in that spousal rights only deals with the sale of a home. This prevents one spouse from selling the home without the others consent in a separation or divorce matter.

From a search of the county property website it appears that the home was owned by the wife prior to their marriage. A subsequent name change was recorded after the marriage placing her married on the deed?

Thanks all for the comments....the question now is how is this presented to the board for their knowledge and action?

Florida state law is specific in that spousal rights only deals with the sale of a home. This prevents one spouse from selling the home without the others consent in a separation or divorce matter.

From a search of the county property website it appears that the home was owned by the wife prior to their marriage. A subsequent name change was recorded after the marriage placing her married on the deed?

Thanks all for the comments....the question now is how is this presented to the board for their knowledge and action?

Ben AS - county records indicate that the wife has 100% ownership in the property.

While each state has various laws ... especially regarding “common law” ... it DOES NOT always equal ownership. Pretty much all an HOA needs to rely upon is any LEGALLY Recorded Deeds. Potentially anything that is not “publically” available to the HOA via their County recorded documents, assessor, etc. is an Owner’s problem ... not an HOA issue.