Wake Forest, NC asked in Real Estate Law for North Carolina

Q: I n North Carolina, do I have property rights if my name is not on the mortgage?

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1 Lawyer Answer
  • Cary, NC
  • Licensed in North Carolina

A: Names being on the mortgage are meaningless. The person named as a borrower on the mortgage is financially responsible to pay on the mortgage. But it has no bearing on ownership rights. The answer to that is whether your name is on the deed. Simply look up the deed to the property. Many register of deeds are online if the land is in NC.

So is your name on the deed?

If not, that still does not mean you don't have rights. It depends on who you are. Are you a spouse? You may have what are called "inchoate" property rights. This arises in cases where a person is married owns land and dies without a will. The surviving spouse gets a portion of the property under the state intestacy law. If one party owns the land and acquired the land during marriage to the other party and the parties later divorce, the other spouse whose name is not on the land also has marital rights to claim a share of the property in equitable distribution.

If you are not a spouse and you are not on the deed, then you have no ownership interest in the property assuming that the owner on the deed is still alive. If the person whose name is on the deed died and has left a will, then the will should specify who gets the property. If there is no will, then the spouse and children of the dead person will inherit. One caveat - generally, those who inherit land via a will or intestacy own the land but inherit subject to the mortgage. That means if they want to keep the land they need to keep paying for it even though their names are not on the mortgage. If they don't want the land (which sometimes happens if the property is worth less than what is owed on the mortgage), then the heirs/beneficiaries may tell the mortgage company to foreclose. In that case, the heirs/beneficiaries are not personally liable for the mortgage because their names are not on it, but they don't get to keep the property either.

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