Can a person with 50% ownership of property take out a mortgage against it without knowledge of the other partner?

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Can a person with 50% ownership of property take out a mortgage against it without knowledge of the other partner?

I have had 50% ownership of my home for 7 years. About 6 years ago my husband, the other 50% owner, took out a large mortgage against my/our home and I knew nothing about it until recently. I don’t believe this is legal.

Asked on April 29, 2019 under Real Estate Law, Georgia

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 2 years ago | Contributor

No, property cannot be mortgaged without the conent of all owners. Of course, it's possible your husband represented that he had consent. Since he is the one who took out/received the loan, the bank has to let him know and cannot act unilterally in regards to your challenge without getting input from him. That said, if never did give consent, you could if necessary hire an attorney and most likely get the loan voided or rescinded through a legal action (lawsuit); that is, you can force the issue if want.
However, to rescind a loan, the money given (the principal) in exchange for the mortgage must be returned entirely--so your husband would become liable for the full amount of the remaining principal at once. (Rescinding means "undoing": everything is returned to the status pre-mortgage, so the mortgage is taken off your property and the bank gets its money back; your husband can't keep the money if the bank loses its mortgage, since that is unfair to let him keep the money without the bank getting what it agreed to loan the money in exchange for). Also, if your husband did represent to the bank that he had your consent, he likely committed bank fraud, a crime, and could face criminal charges. In short, while if you never consented, you can likely void the loan, there are serious potential consequences to consider. You and your husband should both consult with an attorney about this.


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