Law Blog
To Our Friends in the Real Estate Brokerage Profession:
The Court of Appeals, on February 6, 2007, (Burgin v. Owen) ruled that a husband needed his wife's written authority to enter into a valid contract to sell real property if the property was held as tenants by the entirety (titled in both names as husband and wife). Even though the Buyer alleged the husband was his wife's agent the court held the wife had to either sign the contract or sign something giving the husband the authority to sign on her behalf. The purchaser could not enforce the contract nor recover damages for breach when the owners refused to perform.
The Court relied upon a statute (NCGS 39-13.6) that sets forth in part: "Neither spouse may bargain, sell, lease, mortgage, transfer, convey or in any manner encumber any property so held without the written joinder of the other spouse."
In our opinion this law would apply to a written listing contract, probably because of the word "bargain" in the statute. The practice tip: Make sure both spouses actually sign the listing agreement and any modifications.
This case may be appealed to the Supreme Court because of a dissent by one Justice but at present it is the law.
Charles B. Aycock, III
Senior Partner
Aycock & Butler, PLLC
Attorneys at Law
