Delefson-Delano, a husband signed a quit claim deed conveying his interest in property to his wife. The Minnesota Court of Appeals recently held that the same applies for a spousal interest in real estate. Original Post (July 23, 2012): Grade schoolers know the often harsh rule that once you give something away you can’t take it back. Real estate lawyers are now tasked with remembering that, if a spousal interest in homestead property is at issue, extra magic language will be necessary in order to effectuate a release. When court’s require the incantation of magic language, they not only divorce the law from common understanding and usage, but make all of our jobs more difficult.
Likewise, I would have thought that a release of “all the right, title, interest and claim” in the property would have included a a release of a spouse’s homestead interest. I would have thought that my refusal to speak to a cop would signal my desire to remain silent.
It seems to me that requiring such specific language puts the interest of specificity far ahead of common understanding and practical usage. Instead, a spouse must expressly state an intent to waive homestead rights. But, the Minnesota Supremes have concluded that this language is not enough to waive a spouse’s interest in homestead property. To my mind, a release of “all right, title and interest” in real estate means just that, and leaves nothing behind. all the right, title, interest and claim” in the property. The husband’s quit claim deed stated that husband “does hereby remise, release and quitclaim. Wife defended against foreclosure, arguing that the mortgage was void because her husband never signed it. Wife defaulted on the loan, and lender sought to foreclose. Wife then signed a mortgage encumbering the property.
In summary, husband quit claimed homestead property to wife. The facts of Marine Credit are discussed in my earlier post on this case, below. Instead, lawyers now need to incant magic waiver language. Detlefson-Delano, the Minnesota Supremes took a similar tack, holding that a quit claim deed’s broad waiver and release language is insufficient for a spouse to waive their interest in homestead property. SCOTUS deemed silence itself insufficient to invoke the 5th amendment right and instead required an incantation of the right to remain silent. Both the United States and Minnesota Supreme Courts have, in recent decisions, surprised the legal community by requiring a special incantation of magic words when more general verbiage (or silence) should have sufficed.
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