Legality of Handwritten Notarized Document

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Legality of Handwritten Notarized Document

My ex-husband and I are both on a mortgage for a condo in which only he lives and wants to sell. He has verbally agreed not to hold me responsible for any loss on this property and I have verbally agreed not to claim any profit. I feel uneasy about this and think we should have a legally binding agreement. If we write something ourselves and have it notarized, would it be legally binding if challenged?

Asked on October 30, 2017 under Real Estate Law, Pennsylvania

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 4 years ago | Contributor

A handwritten and signed contract, whether notarized or not (notarization adds nothing in this context) is enforceable as long as it meets the criteria for a contract: there are definite, clear terms; there is an exchange of things or promises of value ("consideration"), such as him promising to not hold you responsible for a loss in exchange for you agreeing to not claim any profit; and you both evidence agreement, such as by signing. What you describe can and should be put into a written contract, and if you do and you both sign it, it is enforceable.
Bear in mind that it only is enforceable as to the signatories (you and him): i.e. no matter what the two of you agree among yourselves about profits or losses, if you default on the mortgage, the lender can hold both of you liable for it. The agreement might force him, depending on the terms, to reimburse you for anything you had to pay in that context (if that fell under not holding you responsible for a loss), but that would give you rights against him, not the lender.


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