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Understanding the difference between being listed on the deed and being responsible for the mortgage is crucial when determining your legal rights and financial obligations. If your name is on the deed but not the mortgage, you legally own the home—but you may not be liable for repaying the loan. At Moshes Law, we regularly help clients resolve these often-overlooked issues of ownership and liability in New York real estate.
AUTHOR YURIY MOSHES, ESQ
Founding Member of Moshes Law, P.C.
During his years of practice, Yuriy has concentrated in litigation
and real estate transactions as his areas of expertise
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To begin, it is important to understand the difference between a mortgage on a home and the house title of the home. While they are often used interchangeably in common conversation, a mortgage and title are not the same thing, nor are they really related. Different individuals can be, and oftentimes are, listed on the mortgage and title.
Title represents true ownership. In the context of a home, title is represented by a document called a “deed.” When a home is sold, title to the home must be transferred to the new owner through a deed conveyance. These are filed with the county Register’s Office so that anyone can look up who the owner of a home is. If true ownership of a home is ever up for debate, the first place to look is the deed. If you are not listed on the deed, it is presumed that you are not an owner, and establishing that you are an owner will be very difficult to do and will likely require assistance from a title company.
If you are wondering what are my rights if my name is on a deed but not the mortgage, it is important to understand that you are legally recognized as an owner of the property. However, you are not financially responsible for the loan. This means you have ownership rights but no obligation to make mortgage payments.
A mortgage loan does not represent ownership. Rather, a mortgage is simply a promise to pay back a certain sum of money to the bank. That promise is then “secured” by an asset, typically the home that you used the loan proceeds to buy. The fact that the loan is “secured” means that if you are unable to pay it back, the lender can look directly at the home and sell it to cover the unpaid balance. Thus, the home “secures” the lender’s risk of loss.
Yes, you can generally add someone to your deed even if there is an active mortgage, but it’s essential to understand the legal and financial consequences. When you add someone to your deed, you are transferring partial ownership of your property. This process is often executed using a quitclaim deed or bargain and sale deed in New York.
However, adding a person to your deed does not automatically add them to the mortgage, and doing so without notifying your lender could violate the mortgage agreement. Many mortgages include a due-on-sale clause, which allows lenders to demand full payment of the loan if ownership changes without approval.
Key Considerations:
Always consult a real estate attorney before modifying a deed.
No – you can have only one spouse on the mortgage but both on title. Both owners of the home, typically being spouses listed on the deed, do not have to both be listed on the mortgage. Remember that the mortgage does not indicate who the owner of the home is, so not being listed on the mortgage will have no effect on your ownership of the home.
In certain situations, having one spouse on the mortgage and both on the deed is ideal. This is often the case where one spouse has very poor credit, such that listing that spouse on the mortgage will result in a much higher interest rate than simply listing the other spouse alone. Listing only one spouse on the mortgage may save significant interest over the long term.
There are numerous other reasons to list only one spouse on a mortgage, including:
i. Income Requirements – If including both spouses would cause the couple to fail the income requirements, perhaps because he or she has not had an income in the past few years, that spouse may be best left off the loan application.
ii. Timing – It is often quicker to approve one spouse on a loan than both when time is of the essence.
iii. Limiting Credit Score Impact – If there is a foreclosure and only one spouse is listed on the mortgage, only his or her credit score will be affected.
iv. Pending Divorce – The spouses are pending divorce and one wishes to buy a home without the other.
It is not always as simple as just having one spouse apply for the mortgage, however. In reality, the loan officer will have to be okay with this arrangement knowing that both spouses are owners of the home. Learn more about who has legal rights to the home and title vs mortgage disparities.
Typically, can you be on a mortgage but not on the deed? Usually no, you cannot add an additional person to your mortgage. This is because the mortgage is an agreement between you and your lender entered into, typically, at the time of the purchase of the home. The bank agreed to lend you a sum of money in return for you paying a monthly mortgage payment and interest over 30 years. The bank calculated this interest rate and approved you for the loan based solely on your income, your credit, and your history. If you would have originally applied for the mortgage with two people, the resulting mortgage terms may have been different.
If you have two names on a deed and one on the mortgage, however, you are not out of luck. While most lenders will not allow you to add a party to a mortgage, they will allow you to refinance the mortgage in both of your names. You can confirm whose name is currently on the deed using our NYC Property Search tool, which helps clarify ownership before refinancing.
A refinancing is when you take out an additional, new mortgage with the lender for the balance of the current outstanding mortgage. The new mortgage will list both you and the new person, and will likely have different terms than the original mortgage. The funds of the new mortgage are then used to pay off the funds of the old mortgage, satisfying it. What you are left with is an entirely new mortgage agreement listing both people. There are significant costs to a refinancing, typically between 2% and 5% of the loan amount.
For detailed info on refinancing, see: Do You Need a New York Real Estate Attorney When Refinancing a Mortgage?
If your name is on the mortgage, but not the deed, this means that you are not an owner of the home. Rather, you are simply a co-signer on the mortgage. Because your name is on the mortgage, you are obligated to pay the payments on the loan just as the individual who owns the home. Thus, you have all the liability of the homeowner, without actually owning the home. This is often a bad idea.
The biggest issue occurs if the spouse whose name on the deed dies. Normally, if both spouses’ names are on the deed, the home will automatically transfer to the other spouse. This is not the case if only the deceased spouse’s name is on the deed. The home will instead transfer pursuant to the deceased individual’s will or intestacy laws. In some cases, this could mean that the surviving spouse may not inherit the home.
If you are listed on a mortgage but not the deed, serious problems may arise if one spouse dies or is unable to pay. Thankfully, this is a relatively easy problem to fix. Contact a deed transfer attorney at Moshes Law, P.C. today to help secure the ownership of your home.
For more on the risks of name on mortgage but not on deed, see: What Happens if One Co-Owner Defaults on the Mortgage?
If your name is on the title (deed) but not on the mortgage, you legally own the property but are not responsible for making loan payments. This is a common arrangement between spouses, family members, or business partners.
You can:
But you cannot be forced to pay the mortgage unless you’re on the loan.
Risks:
Divorce is complicated when it comes to finances. Unfortunately, there is no rule in New York for what happens to a mortgage after a divorce if both parties signed the mortgage. If you bought the home during the marriage, it is generally treated as marital property in New York and is divided fairly between the spouses. The parties often enter into a marriage separation agreement detailing what will happen with the mortgage and home.
Generally, the spouse that remains in the house will refinance the home and obtain a mortgage in his or her name only. This means that the existing mortgage with both spouses will be satisfied and the other spouse will be released. The spouses can agree to split any equity in the home.
If no agreement is reached, however, both spouses will remain liable for the mortgage balance, even if only one lives there. This could lead to foreclosure and damage credit scores. Learn more about mortgage contingency in divorce here.
Just like a spouse cannot leave another out of a will, a spouse cannot take another spouse off a mortgage without lender approval. Because the mortgage is a contract between the borrowers and the lender, removing one spouse requires lender consent or refinancing.
For further guidance, see How to Prevent Foreclosure After the Death of a Mortgage Holder: A Step-by-Step Guide.
It is generally okay to have two names on the house title and one on the mortgage. If your name is on deed but not on mortgage, you are an owner of the home but not liable for the mortgage loan payments. If payments are defaulted on, the lender can still foreclose on the home, despite only one spouse being on the mortgage. Thus, someone must pay to avoid foreclosure. Other issues may include the unnamed spouse being unable to take tax deductions on interest paid.
For questions like can you sell a house if you are on the deed but not the mortgage, know that you can, but complications may arise depending on the mortgage holder’s rights. Legal help from a real estate attorney can clarify your options.
If your name is not on the mortgage but you are on the deed or title, this situation can be complicated. Upon divorce, the home might be considered marital property (owned by both spouses) or individual property (owned only by the spouse on the deed). In New York, even if only one spouse’s name is on the mortgage, but both are on the house title, courts may consider the house as shared property. Also, if the spouse on the mortgage dies, the property may not automatically transfer to the other spouse if they are not on the deed or title.
If the house was acquired before marriage, it might be considered individual property. However, if the house was bought during the marriage, it’s generally considered marital property in New York, regardless of whose name is on the mortgage or deed. It’s important to address rights related to the house title in your divorce or separation agreement.
Yes, a married couple can purchase a property where only one spouse’s name is on the deed and mortgage. However, New York is an equitable distribution state. Property obtained during the marriage is generally treated as marital property and divided fairly between the spouses during divorce—even if only one name appears on the mortgage or deed.
In this case, the deceased’s estate will be liable for the mortgage. The estate will have to pay the monthly payment or risk foreclosure. Generally, the bank will work with the surviving spouse to refinance the home in his or her name.
No, you generally cannot add someone to an existing mortgage unless you refinance. This means if your name is on the mortgage but not on the deed, or vice versa, adding someone like your daughter would require refinancing to officially include them on the mortgage.
Yes, you can have multiple people on a mortgage, but lenders typically prefer two applicants. More people on the mortgage means a more complex approval process. Even if there are multiple names on the deed or title, the mortgage might only list one or two borrowers.
Yes, if your name is on the deed but not on the mortgage, you generally have ownership rights and can sell your share of the property. However, the mortgage lender must be paid off or refinanced before the sale, since the mortgage is a lien on the property, regardless of whose name is on it.
If your name is on the deed but not on the mortgage, you legally own part of the house and have rights to it. However, you are not responsible for mortgage payments unless you co-signed the loan. This situation can create complications if mortgage payments are missed, so it's important to understand your legal position and possibly seek advice from a real estate attorney.
Understanding what are my rights if my name is on a deed but not the mortgage can save you from costly surprises and legal challenges. While being on the deed confirms your ownership of the home, not being on the mortgage means you are not financially responsible for loan payments, but the property still secures the lender’s interest. If you find yourself in this situation or are wondering if you can sell a house if you are on the deed but not the mortgage, it’s important to consult with a real estate attorney. At Moshes Law, we help homeowners navigate these complex issues to safeguard your rights and interests. Contact us today for a free consultation to discuss your specific situation and ensure your ownership is fully protected.
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