most gay and lesbian couples, buying a house together is not only an
indication of a major commitment to each other, it is more often than
not the most expensive single purchase you will ever make as an individual
or as a couple.
Because most property laws were written to protect individuals and married
couples (who are viewed under most state laws as one entity) it is crucial
that as gay and lesbian couples we understand that we must create the contractual
and legal documentation which will provide us with the protection granted
automatically to married couples.
If these simple protections are not created, the death of yourself or your
partner may result in a new partnership with family members of the deceased.
Sometimes that’s not a bad thing — sometimes it’s a disasterous
burden for a grief-stricken survivor!
If the general rule of purchasing real estate is “location, location,
location” then the gay and lesbian rule of real estate should be “Get
a lawyer, get a lawyer, get a lawyer!” And only a real estate lawyer — preferably
one who already understands the critical issues of gay and lesbian property
Here are a couple of major pitfalls to be aware of in purchasing property
as a gay and lesbian couple:
If you want your rights to your property to go only to your partner immediately
upon your death, you must take title to your property by Joint Tenancy
With Right of Survivorship — not individually and not just by joint
tenancy. Taking title any other way will require probate upon your death
and may result in the deceased partner’s “heirs at law” becoming
owners of the property along with the surviving partner. The heirs may
then sue for partition and force the surviving partner to sell or move
out of the property.
In some states special laws called “Homestead laws” protect
the rights of a spouse and/or minor children of a married person or a parent.
These are not to be confused with “Homestead exemptions,” which
refer to taxation.
If you were previously married, then purchased property with your partner
and your divorce was not finalized or was flawed, your former spouse may
have rights to your property. Your minor child may also have rights to
your property even if the divorce was finalized. If your former spouse
has custody of your child, you may be dealing with your former spouse as
a partner in real estate ownership again because of his or her status as
guardian for your child if you are not careful with how you take title
to your property.
Sometimes one partner may have significantly more money to invest in a
property than the other partner. Unless the partner with more money invested
in the property is willing to share 50/50 with the other partner, consideration
should be given to other forms of protecting each person’s interests.
Equal partnership may not be possible or desirable under certain circumstances.
Sharing a home together is often more important than the percentage of
ownership each partner has in their home.
Perhaps one partner already owned the home in which a new couple is living.
If the real concern is more about the security of the partner who has no
ownership interest in the home, then provisions to protect the security
of the non-owning partner might be more easily made by will rather than
by changing the title. Get good gay-friendly and gay-knowledgeable legal
advice before you purchase property with your partner.
Equally important as deciding how to take title to a property is deciding
the smaller issues such as:
• How do we pick a competent real estate agent?
• How do we know which neighborhood is gay-friendly?
How do we know that the banks and insurance companies won’t deny
our applications because we’re both of the same gender?
The first step in answering all three of these questions is to familiarize
yourself with the gay community in the area where you plan to move. Don’t
be afraid to ask questions of anybody. Negative responses to your questions
(or your sexuality) can be just as informative as positive ones when you
are trying to get the scoop on local attitudes. Sometimes a friend in the
area can give you all the local information you need. Sometimes the internet
and internet chat rooms can be helpful. Bars and bookstores generally carry
local gay papers that will fill you in on what’s happening in the
community and may even have ads for local real estate agents.
Be aware that just because a real estate agent advertises in a gay paper
doesn’t mean he or she is a competent real estate professional. By
the same token, just because a real estate agent is gay does not necessarily
mean that he or she is familiar with gay and lesbian legal issues affecting
real estate. They don’t teach that stuff in real estate school!
Get names of agents from every source you can, but ask around about all
the agents before you call one.
It is important to understand that most states require real estate agents
to educate clients and customers as to the agency relationships allowed
in that particular state upon their initial contact. Make sure you understand
whether you are considered by the agent to be a client or a customer. An
agent has obligations to a client under the law that he doesn’t have
to a customer. It is critical that you understand those relationships and
obligations before you discuss confidential information with a real estate
agent. He or she may not be representing you at all and may be required
under the law to disclose anything you say to the party he or she does
Finding a gay-friendly neighborhood is often the easiest task in moving.
If you can’t find a gay-friendly neighborhood, get directions to
the nearest historic district. It’s a safe bet you’ll be as
close as you’re going to get on the first try! Take note of whose
real estate signs are in the neighborhood and ask around about the reputation
and integrity of these people before you consider calling them. The company
with the most signs may not be the company that is going to give you the
best representation. Sometimes the smaller firms are the best choice to
represent you because they perhaps don’t subscribe to the large corporate
mentality of emphasizing volume sales over client representation.
Competent real estate agents will have good banking, legal, home inspection
and insurance contacts. Ask the bankers how they view applications from
same-gender couples and if they will allow your partner to insure his or
her belongings (contents) under your homeowner’s policy if his or
her name is not on the deed and the mortgage. Ask the lawyer what he knows
about protecting gay couples. If they don’t mention the Joint Tenancy
with Right of Survivorship issue, get another attorney.
Ask the insurance people if the companies they represent will insure your
partner’s contents if you do not plan to list your partner on the
deed or the mortgage. If the answer is no, then your partner will be required
to purchase a renter’s policy to cover his or her contents. This
means two deductibles in the event of a loss that affects both of you — one
for you and one for your partner. This can be substantial in the event
of a hurricane where some insurers now have the right to increase their
deductibles to as much as four percent of the policy limit for coastal
communities in the event of a declared hurricane ($4,000 on a $100,000
policy, plus four percent of your partner’s policy limit). If you
are planning to insure your cars with the same company that has your homeowner’s
insurance, ask if the companies they represent give a multiple-car ownership
discount to same-gender couples. State Farm doesn’t — Traveler’s
and some others do.
Don’t be afraid to demand what you need in making the biggest investment
of your life and don’t be afraid to demand what you need to protect
it. There are important differences for gay and lesbian couples when it
comes to buying and protecting our property that married couples would
never even have to consider. The laws were written for them — not
for us. Gay and Lesbian home buyers must go the extra step to protect themselves
both under the law and from the law.
Charlie Smith is the broker in charge for CSA Real Estate Services, Inc.
in Charleston, S.C. Contact him at firstname.lastname@example.org.