Bulletin: DC000019

Dear Associates:

In 2001 when the District of Columbia abolished dower and curtesy, everyone assumed that we no longer needed non-title spouses to sign on a deed of trust. Recent legislative changes in the District of Columbia have called into question this assumption and necessitates that we make a change in our underwriting requirements.

Section 15-502 of the District of Columbia Code was recently amended to extend to registered domestic partners the rights that were previously conferred upon spouses. This section of the DC Code now reads as follows:

"A mortgage, deed of trust, assignment for the benefit of creditors, or bill of sale upon exempted articles is not binding or valid unless it is signed by the spouse or domestic partner of a debtor who is married and living with his or her spouse or domestic partner."

The amendment of this provision to include domestic partners brought to light that another section of this Chapter of the DC Code, Section 15-501, had also been amended to significantly expand the definition of "exempted articles". As currently drafted, exempted articles includes:

"the debtor's aggregate interest in real property used as the residence of the debtor, or property that the debtor or a dependent of the debtor in a cooperative that owns property that the debtor or a dependent of the debtor uses as a residence, or in a burial plot for the debtor or dependent of the debtor."

Unfortunately, one reading of these two provisions is that the principal residence of a District of Columbia resident may not be encumbered unless both spouses or both domestic partners sign on the deed of trust. This would include a spouse or domestic partner who was not in title.

Based upon the foregoing as well as the other recent changes made to the District of Columbia Code with respect to domestic partners, we must revise Stewart Title Guaranty Company's ("Stewart Title") current underwriting requirements as follows:

TITLE COMMITMENTS

All Title Commitments issued in connection with the financing of 1 to 4 family residences in the District of Columbia must contain a requirement substantively similar to the following:

In the event the property is the primary residence and the insured is either married or has a registered domestic partner, both spouses or domestic partners must join in the deed of trust pursuant to Section 15-502 of the DC Code.

AFFIDAVITS

In all transactions involving the financing of 1 to 4 family residences in the District of Columbia, you must receive an affidavit from the owner that the property is either not a principal residence or if it is, that the owner is not married or does not have a domestic partner. This can be included in a separate affidavit or incorporated into your standard owner's affidavit. Language substantively similar to the following will be sufficient to meet this requirement:

The undersigned certifies to Stewart Title as follows (please check one)

1. The property to be insured is not the primary residence of the borrower.
   
   
2. The property to be insured is the primary residence of the borrower and the borrower is neither married nor does not have a "domestic partner" as defined in Section 32-701(3) of the District of Columbia Code.
   
   
3. The property to be insured is the primary residence of the borrower and (i) borrower's spouse is ________________ , or (ii) the borrower's domestic partner is _________________ .

We also strongly recommend that all mortgages and deeds of trust from parties who are not married and do not have a domestic partner contain a specific reference to this status in a prominent place (e.g., the front page should contain a reference "from john doe, unmarried and without domestic partner").

ESTABLISHING DOMESTIC PARTNERS

As noted above, these additional rights are conferred upon domestic partners as well as spouses. The District of Columbia defines a domestic partner in Section 32-701(3) as follows:

"Domestic partner" means a person with whom an individual maintains a committed relationship as defined in paragraph (1) of this section and who has registered under § 32-702(a). Each partner shall:

(A) Be at least 18 years old and competent to contract;
(B) Be the sole domestic partner of the other person; and
(C) Not be married.

In order to register as a domestic partner, persons shall register as domestic partners by executing a declaration of domestic partnership to be filed with the Mayor. Similarly, a domestic partner may terminate the domestic partnership by filing a termination statement with the Mayor. A termination statement shall take effect 6 months after it is filed. As of this writing, it is unclear whether the District of Columbia will release this information to title agents and other interested parties.

ESTATE ISSUES

Domestic partners have been added to the various provisions of the wills and estates provisions of the District of Columbia Code. The biggest impact of these changes is to now include the domestic partner on the same level as a spouse for purposes of intestate succession. Accordingly, in any case in which property is being distributed from an estate to heirs, you must also inquire as to whether there is a surviving domestic partner.