How can a mother and son ‘swap’ homes and mortages legally?

A mother and son have moved out of their own homes and into the others, while paying the others mortgage payment, however nothing has ever been done legally. What is the easiest and quickest way to make this legal? They want the deed to transfer the deed to the home they are currently living into the other persons name and would like to know how to assume responsibility for the mortgage as well.

Asked on March 7, 2019 under Real Estate Law, Kentucky

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 1 year ago | Contributor

You can't do this the way you want: there is no right to "swap" or take over ("asssume" is the legal term) each other's mortgages. The mortgage company (e.g. bank) could voluntarily allows you to do this, but are very unlikely to do so--they want the mortgage paid off by a new mortgage issued to the person acquiring the home (so they get their money from mortgage 1 and potentially generate the fees from issuing new mortgage 2). And you cannot transfer title without paying off the mortgage.
You can sell the houses to each other, paying off the mortgages in the process, but you will incur various transaction fees in doing so--especially if you have to take out new mortgages to do so. Whether it is worthwhile doing so is questionable. If it still makes sense to sell the homes to each other, you can, but have to make to sure that the transactions will pay off the existing mortgages.
If the mortgages have been largely paid down, then the best way to proceed is to accelerate payment as much as possible, pay off the mortgages, then you can simply quitclaim the properties to each other for any amount you both want. It's the mortgages that complicate your plan.


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