Iowa Code 561.13 – Conveyance or encumbrance
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Terms Used In Iowa Code 561.13
- Contract: A legal written agreement that becomes binding when signed.
- following: when used by way of reference to a chapter or other part of a statute mean the next preceding or next following chapter or other part. See Iowa Code 4.1
- Mortgage: The written agreement pledging property to a creditor as collateral for a loan.
- Power of attorney: A written instrument which authorizes one person to act as another's agent or attorney. The power of attorney may be for a definite, specific act, or it may be general in nature. The terms of the written power of attorney may specify when it will expire. If not, the power of attorney usually expires when the person granting it dies. Source: OCC
561.13 Conveyance or encumbrance.
1. A conveyance or encumbrance of, or contract to convey or encumber the homestead,
if the owner is married, is not valid, unless and until the spouse of the owner executes the same or a like instrument, or a power of attorney for the execution of the same or a like instrument, except as provided in subsection 3. However, when the homestead is conveyed or encumbered along with or in addition to other real estate, it is not necessary to particularly describe or set aside the tract of land constituting the homestead, whether the homestead is exclusively the subject of the contract or not, but the contract may be enforced as to real estate other than the homestead at the option of the purchaser or encumbrancer.
2. If a spouse who holds only homestead rights and surviving spouse’s statutory share in the homestead specifically relinquishes homestead rights in an instrument, including a power of attorney constituting the other spouse as the husband’s or wife’s attorney in fact, as provided in § 597.5, it is not necessary for the spouse to join in the granting clause of the same or a like instrument.
3. A conveyance or encumbrance or a contract to convey or encumber the homestead is not invalid under subsection 1 if any of the following apply:
a. The nonsigning spouse’s interest is terminated by a decree of dissolution of marriage or other order of the court.
b. The nonsigning spouse’s right of recovery is barred by § 614.15.
c. The encumbrance is a purchase money mortgage as defined in § 654.12B.
d. A court sitting in equity enters a decree holding that invalidating the conveyance or encumbrance or a contract to convey or encumber the homestead would, directly or indirectly, unjustly enrich the nonsigning spouse.
4. For the purposes of this section, “”nonsigning spouse”” means a spouse who has not executed a conveyance or encumbrance or a contract to convey or encumber the homestead, the same or a like instrument, or a power of attorney for the execution of the same or a like instrument.
[C51, §1247; R60, §2279; C73, §1990; C97, §2974; C24, 27, 31, 35, 39, §10147; C46, 50, 54,
58, 62, 66, 71, 73, 75, 77, 79, 81, §561.13; 81 Acts, ch 181, §1]
91 Acts, ch 106, §1; 2007 Acts, ch 68, §1, 2; 2011 Acts, ch 11, §1
Referred to in §597.5, 614.14, 633B.204
1. A conveyance or encumbrance of, or contract to convey or encumber the homestead,
if the owner is married, is not valid, unless and until the spouse of the owner executes the same or a like instrument, or a power of attorney for the execution of the same or a like instrument, except as provided in subsection 3. However, when the homestead is conveyed or encumbered along with or in addition to other real estate, it is not necessary to particularly describe or set aside the tract of land constituting the homestead, whether the homestead is exclusively the subject of the contract or not, but the contract may be enforced as to real estate other than the homestead at the option of the purchaser or encumbrancer.
2. If a spouse who holds only homestead rights and surviving spouse’s statutory share in the homestead specifically relinquishes homestead rights in an instrument, including a power of attorney constituting the other spouse as the husband’s or wife’s attorney in fact, as provided in § 597.5, it is not necessary for the spouse to join in the granting clause of the same or a like instrument.
3. A conveyance or encumbrance or a contract to convey or encumber the homestead is not invalid under subsection 1 if any of the following apply:
a. The nonsigning spouse’s interest is terminated by a decree of dissolution of marriage or other order of the court.
b. The nonsigning spouse’s right of recovery is barred by § 614.15.
c. The encumbrance is a purchase money mortgage as defined in § 654.12B.
d. A court sitting in equity enters a decree holding that invalidating the conveyance or encumbrance or a contract to convey or encumber the homestead would, directly or indirectly, unjustly enrich the nonsigning spouse.
4. For the purposes of this section, “”nonsigning spouse”” means a spouse who has not executed a conveyance or encumbrance or a contract to convey or encumber the homestead, the same or a like instrument, or a power of attorney for the execution of the same or a like instrument.
[C51, §1247; R60, §2279; C73, §1990; C97, §2974; C24, 27, 31, 35, 39, §10147; C46, 50, 54,
58, 62, 66, 71, 73, 75, 77, 79, 81, §561.13; 81 Acts, ch 181, §1]
91 Acts, ch 106, §1; 2007 Acts, ch 68, §1, 2; 2011 Acts, ch 11, §1
Referred to in §597.5, 614.14, 633B.204