The homestead has always been sacred in Texas and is well protected by the Texas Constitution. Homestead rights are one of the most common issues I have come across during my time as an abstractor. While the motives behind enacting homestead laws may be of the past, homestead rights offer a myriad of protections to this day. In particular, the Texas Family Code states in Section 5.001 that “whether the homestead is the separate property of either spouse or community property, neither spouse may sell, convey, or encumber the homestead without the joinder of the other spouse.”
Many married land owners have the false belief that if the property was acquired individually, the decision to sell or encumber the property is their own. This is not necessarily the case if the property constitutes their homestead. In those instances, regardless of when the property was acquired, both spouses would have to sign the vesting or encumbrance documents. A customer’s vesting document may not tell the whole story; it is the title abstractor’s duty to perform a diligent search to analyze the bigger picture.
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