N.M. Stat. § 40-3-13 (2026)

property; when joinder required.
     A. Except for purchase-money mortgages and except as otherwise provided in this
subsection, the spouses must join in all transfers, conveyances or mortgages or
contracts to transfer, convey or mortgage any interest in community real property and
separate real property owned by the spouses as cotenants in joint tenancy or tenancy in
common. The spouses must join in all leases of community real property or separate
real property owned by the spouses as cotenants in joint tenancy or tenancy in common
if the initial term of the lease, together with any option or extension contained in the
lease or provided for contemporaneously, exceeds five years or if the lease is for an
indefinite term.

  Any transfer, conveyance, mortgage or lease or contract to transfer, convey,
mortgage or lease any interest in the community real property or in separate real
property owned by the spouses as cotenants in joint tenancy or tenancy in common
attempted to be made by either spouse alone in violation of the provisions of this
section shall be void and of no effect, except that either spouse may transfer, convey,
mortgage or lease directly to the other without the other joining therein.

   Except as provided in this section, either spouse may transfer, convey, mortgage or
lease separate real property without the other's joinder.

    B. Nothing in this section shall affect the right of one of the spouses to transfer,
convey, mortgage or lease or contract to transfer, convey, mortgage or lease any
community real property or separate real property owned by the spouses as cotenants
in joint tenancy or tenancy in common without the joinder of the other spouse, pursuant
to a validly executed and recorded power of attorney as provided in Section 47-1-7
NMSA 1978. Nothing in this section shall affect the right of a spouse not joined in a
transfer, conveyance, mortgage, lease or contract to validate an instrument at any time
by a ratification in writing.

History: 1953 Comp., § 57-4A-7, enacted by Laws 1973, ch. 320, § 8; 1975, ch. 246, §
5; 1993, ch. 165, § 1.

                                    ANNOTATIONS

Cross references. — For necessity of joinder of spouses in contracts of indemnity, see
40-3-4 NMSA 1978.

The 1993 amendment, effective June 18, 1993, made stylistic changes in Subsection
A; and in Subsection B, substituted "47-1-7 NMSA 1978" for "70-1-6 NMSA 1953" at the
end of the first sentence and added the second sentence.

Effect of transfer to partnership. — Once community property is contributed to a
partnership, its status is not transmuted from community to separate or partnership
property. Although the community no longer has a right to the specific piece of property
the community still has an interest. The community merely trades its interest in the
specific asset for a community interest in the partnership. Dotson v. Grice, 1982-NMSC-
072, 98 N.M. 207, 647 P.2d 409.

Conflict between this section and 14-9-3 NMSA 1978 should be resolved in favor of
the latter statute which protects the rights of innocent purchasers for value without
notice of unrecorded instruments. Jeffers v. Martinez, 1979-NMSC-083, 93 N.M. 508,
601 P.2d 1204; Jeffers v. Doel, 1982-NMSC-116, 99 N.M. 351, 658 P.2d 426.

No limit on who may claim benefit. — This section is directed at the conveyance itself
and not at the identity of the person claiming the conveyance is void. It contains no
limitations regarding for whose benefit it may be used. C & L Lumber & Supply, Inc. v.
Texas Am. Bank/Galeria, 1990-NMSC-056, 110 N.M. 291, 795 P.2d 502.
Husband and wife must join in all deeds and mortgages affecting community real
property. Pickett v. Miller, 1966-NMSC-050, 76 N.M. 105, 412 P.2d 400.

"Join in" means "sign". — Under this section a contract for the sale of an interest in
community real property, which has not been signed by both husband and wife, is
unenforceable, void and of no effect absent a validly executed and recorded power of
attorney, because the words "join in" as used in this section mean "sign". Hannah v.
Tennant, 1979-NMSC-009, 92 N.M. 444, 589 P.2d 1035.

Neither husband nor wife can transfer real property without the other. — As the
court construes the section by its plain terms at the present time, neither husband nor
wife can make a transfer or conveyance of the real property of the community without
the other joining in such conveyance or transfer, and if such transfer or conveyance is
attempted of such real property of the community by either husband or wife alone, such
transfer or conveyance is void, and of no effect. Marquez v. Marquez, 1973-NMSC-084,
85 N.M. 470, 513 P.2d 713.

Signatures of both spouses required. — Contracts to transfer an interest in
community real property are void and of no effect unless signed by both husband and
wife. Hannah v. Tennant, 1979-NMSC-009, 92 N.M. 444, 589 P.2d 1035.

Federal coal leases are real community property, and a husband cannot effectively
convey them without his wife's signature. Padilla v. Roller, 1980-NMSC-037, 94 N.M.
234, 608 P.2d 1116.

Joining of both spouses. — If both spouses do not join, an attempt by one spouse to
transfer, convey or mortgage community real property is void. Swink v. Sunwest Bank
(In re Fingado), 113 Bankr. 37 (Bankr. D.N.M. 1990).

Section not applicable to executory contract to sell community. — The failure of
seller's wife to sign does not render agreement void or unenforceable, but was sufficient
where she was named in the agreement and was ready, willing and able to convey her
community interest. This section, requiring the wife to sign deeds and mortgages
affecting community property, has no application to an action for damages on the
husband's executory contract for the sale of community realty, and it is immaterial
whether the action is by the vendor or the vendee. Pickett v. Miller, 1966-NMSC-050, 76
N.M. 105, 412 P.2d 400.

Community contributions and improvements to separate property. — Community
contributions and improvements to real property do not affect the title of separate
ownership; the right of the community to be reimbursed for the amount of the lien does
not change the character of the property from separate to community, and separate
property may be conveyed by the owner without the joinder of a spouse. Hickey v.
Griggs, 1987-NMSC-050, 106 N.M. 27, 738 P.2d 899.
No specific performance where wife not joined. — A contract purporting to sell
community real estate would not be ordered to be specifically performed where the wife
did not join in the husband's agreement to sell. Pickett v. Miller, 1966-NMSC-050, 76
N.M. 105, 412 P.2d 400.

Requirements to overcome presumption of fraud in community conveyance. —
The burden was on husband's heirs to overcome the presumption of fraud in action to
nullify conveyance of community property for fraud. They were required to show (a)
payment of an adequate consideration; (b) full disclosure to the wife as to her rights and
the value and extent of the community property; and (c) that the wife had competent
and independent advice in conferring the benefits upon her husband. Trujillo v. Padilla,
1968-NMSC-090, 79 N.M. 245, 442 P.2d 203.

Invalidity of contract as affirmative defense. — A contract's invalidity under this
section, which states that a contract to sell land held in joint tenancy by a husband and
wife is void unless the wife either signs the contract or gives the husband a power of
attorney to sell the land, is an affirmative defense which the defendant bears the burden
of proving by showing that he made some effort to ascertain the existence of the power
of attorney. Otero v. Buslee, 695 F.2d 1244 (10th Cir. 1982).

Spouse's failure to sign bank note did not preclude subsequent encumbrance. —
Subsection A should not be construed to require both spouses to join in creating a
community debt merely because a later judgment on the debt might encumber
community real property. To the extent that New Mexico common law suggests
otherwise, those decisions are overruled. Accordingly, the trial court did not err when it
ordered the judicial sale of the spouse's residence to satisfy the creditor bank's
judgment on note defaulted on by the husband individually. Huntington Nat'l Bank v.
Sproul, 1993-NMSC-051, 116 N.M. 254, 861 P.2d 935.

Effect of one spouse's signature on promissory note can do no more than commit
his separate property and his share of the community personal property to repayment of
the obligation stated in the note because he is without power to encumber the
community real property for its repayment without the other spouse's joinder. Shadden
v. Shadden, 1979-NMCA-078, 93 N.M. 274, 599 P.2d 1071, cert. denied, 93 N.M. 172,
598 P.2d 215; overruled by Huntington Nat'l Bank v. Sproul, 1993-NMSC-051, 116 N.M.
254, 861 P.2d 935.

Regardless of the wording of a guaranty contract, unless his wife joins in the execution
of the guaranty, a husband can only encumber his own separate property and his share
of the community real property. First State Bank v. Muzio, 1983-NMSC-057, 100 N.M.
98, 666 P.2d 777, overruled by Huntington Nat'l Bank v. Sproul, 1993-NMSC-051, 116
N.M. 254, 861 P.2d 935.

Fraudulently executed promissory note. — Underlying obligation represented by a
fraudulently executed promissory note was a separate debt of the wife, and the
proceeds received did not benefit the community, where the wife committed fraud
against her husband by allowing her brother to impersonate her husband and forge his
name on financial documents. Beneficial Fin. Co. v. Alarcon, 1991-NMSC-074, 112
N.M. 420, 816 P.2d 489.

Aggrieved party's remedies limited where contract void for lack of spouse's
signature. — Where an option contract to convey community property is void for lack of
one spouse's signature, the aggrieved party may not obtain specific performance or
damages for breach of contract. Sims v. Craig, 1981-NMSC-046, 96 N.M. 33, 627 P.2d
875.

Alternative remedies. — Where the aggrieved party may not sue on a contract to
convey community property because it is void for failure to join one spouse, an action
for negligent misrepresentation may be maintained. Sims v. Craig, 1981-NMSC-046, 96
N.M. 33, 627 P.2d 875.

Although misrepresentation of the legal status of property could be grounds for other
theories of recovery than breach of contract, plaintiff could not maintain an action for
damages on either a real estate exchange agreement or its addendum because they
were void and unenforceable under this section. Arch, Ltd. v. Yu, 1988-NMSC-101, 108
N.M. 67, 766 P.2d 911.

Effect on after-acquired property. — An otherwise valid and fully enforceable real
estate sales contract, executed by a single spouse, was not rendered wholly void under
Subsection A because the asset later was acquired by the community. The contract was
void as to after-acquired community property, but was valid as to the after-acquired real
estate when it was transmuted and owned by the seller as his separate estate. English
v. Sanchez, 1990-NMSC-064, 110 N.M. 343, 796 P.2d 236.

Section is inapplicable to conveyance of separate property. — Where husband and
wife, prior to husband's death, entered into a sole and separate property agreement that
transmuted the couple's community property to husband's separate property, and where
husband then executed a reverse mortgage transaction on this separate property, which
was assigned to plaintiff mortgage company, and where husband subsequently re-
conveyed the property back to husband and wife, and where, after husband's death,
plaintiff filed a complaint seeking a judgment foreclosing on its security interest in wife's
property pursuant to the reverse mortgage, the district court erred in granting wife's
motion for summary judgment on the basis that the reverse mortgage executed by
husband was void because wife did not execute it as well, because the sole and
separate property agreement transmuted the property into husband's separate property
and he had authority to unilaterally grant a mortgage. The reverse mortgage was not
void pursuant to this section. Nationstar Mort. LLC v. O'Malley, 2018-NMCA-029, cert.
denied.

Community debt to be paid from community funds even after divorce. — A
community debt incurred prior to the dissolution of the marital community, and for the
benefit thereof, would properly be payable out of "community" funds notwithstanding the
fact that such community property had been transmuted into separate property by virtue
of a decree of divorce. Moucka v. Windham, 483 F.2d 914 (10th Cir. 1973).

Signatures on loan commitment, not on contract. — Without more, the signature of
both spouses on a loan commitment is insufficient to overcome the affirmative defense
that both spouses did not execute the actual contract conveying real property. Arch, Ltd.
v. Yu, 1988-NMSC-101, 108 N.M. 67, 766 P.2d 911.

Where wife did not join mineral deed and evidence did not show separate
purchase. — Where plaintiff claimed predecessor's prior mineral deed to another was
void for failure of predecessor's wife to join in deed, the burden of the prior grantee of
showing by preponderance of evidence that interest in question was purchased with
separate funds and not community property was not met and deed was void. Mounsey
v. Stahl, 1956-NMSC-110, 62 N.M. 135, 306 P.2d 258.

Easement agreement void where wives not joined. — Where 1918 agreement
between married men purports to establish easement rights in community property
without having their respective wives join therein is void under this section, use of such
easement until 1959 is permissive. Batts v. Greer, 1963-NMSC-037, 71 N.M. 454, 379
P.2d 443.

Quitclaim deeds not proper where wife did not join agreement to sell. — Proposed
agreement to shift the property lines of the parties executed by quitclaim deeds is
clearly improper since both the husband and the wife must join in all deeds and
mortgages affecting community real property and a contract purporting to sell
community real estate will not be ordered specifically performed where the wife did not
join the husband's agreement to sell. Sanchez v. Scott, 1973-NMSC-115, 85 N.M. 695,
516 P.2d 666.

Real estate listing agreement not transfer of community property. — A real estate
listing agreement is not a transfer, conveyance, mortgage or contract to transfer, convey
or mortgage community property within the meaning of this section. Execu-Systems v.
Corlis, 1980-NMSC-121, 95 N.M. 145, 619 P.2d 821.

Husband's breach of listing agreement subjected community to debts without
wife's concurrence. — The fact that, upon the breach of a real estate listing agreement
by the husband, the listing agent can bring suit, obtain a judgment and levy on the
property without the wife's signature on the agreement is not violative of this section,
inasmuch as a husband can subject the community to certain debts without the
concurrence of his wife. Execu-Systems v. Corlis, 1980-NMSC-121, 95 N.M. 145, 619
P.2d 821.

Presumption not rebutted. — The words and conduct of a disingenuous spouse in
misrepresenting that real estate was his separate property were not sufficient to rebut a
presumption that property was held as a community interest. Arch, Ltd. v. Yu, 1988-
NMSC-101, 108 N.M. 67, 766 P.2d 911.
Law reviews. — For comment on Thaxton v. Thaxton, 75 N.M. 450, 405 P.2d 932
(1965), see 6 Nat. Resources J. 298 (1966).

For article, "The Community Property Act of 1973: A Commentary and Quasi-Legislative
History," see 5 N.M.L. Rev. 1 (1974).

For note, "Coal Leases Held Real Property," see 21 Nat. Resources J. 415 (1981).

For note, "Clouded Titles in Community Property States: New Mexico Takes a New
Step," see 21 Nat. Resources J. 593 (1981).

For article, "Survey of New Mexico Law, 1979-80: Commercial Law," see 11 N.M.L.
Rev. 69 (1981).

For article, "Survey of New Mexico Law, 1979-80: Estates and Trusts," see 11 N.M.L.
Rev. 151 (1981).

For article, "Survey of New Mexico Law, 1979-80: Property," see 11 N.M.L. Rev. 203
(1981).

For annual survey of New Mexico law relating to domestic relations, see 12 N.M.L. Rev.
325 (1982).

For note, "Community Property - Spouse's Future Federal Civil Service Disability
Benefits are Community Property to the Extent the Community Contributed to the Civil
Service Fund During Marriage: Hughes v. Hughes," see 13 N.M.L. Rev. 193 (1983).

For survey of 1990-91 commercial law, see 22 N.M.L. Rev. 661 (1992).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 41 Am. Jur. 2d Husband and Wife § 49
et seq.

Recovery of damages for breach of contract to convey homestead where only one
spouse signed contract, 5 A.L.R.4th 1310.

Proceeds or derivatives of real property held by entirety as themselves held by entirety,
22 A.L.R.4th 459.

41 C.J.S. Husband and Wife § 168.