The Wife Who Isn't on Title, the Acequia, and the Well Test
Mateo has listed 4.2 irrigated acres in Corrales for $685,000. A 1998 deed from his mother conveys title to "Mateo, a single man," although he married Ana in 2003 and they have lived on the property and paid the mortgage from joint funds ever since. Only Mateo signed the purchase agreement with Priya. The title commitment shows a 20-foot acequia easement along the north boundary and a 1978 shared-well agreement covering three parcels; the lender requires a current well share and evidence the acequia easement is of record. Priya's 10-day due diligence period expires Friday and the well test is not back. Mateo tells the listing broker, "Ana's name isn't on anything; we don't need her signature."
1. What must happen regarding Ana, and what is the broker's role?
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The deed language is not the answer. Property acquired during a marriage is presumed community property in New Mexico regardless of how it is titled. Mateo's marriage in 2003, the joint mortgage payments from community funds, and the shared residence all cut against the 'single man' recital. A 1998 deed proves only what was true in 1998.
Conveyance of community real property generally requires both spouses to join. The title company will almost certainly require Ana's signature on the deed or a spousal joinder/quitclaim before it will insure Priya's title without exception. The lender will require it too, because a policy with a community-property exception is not acceptable collateral protection.
The broker's role - and its limits:
- Do not give legal advice. Whether the property is Ana's separate property by prenuptial agreement, gift, or devise is a legal question for the Cordovas' attorney. Refer it.
- Disclose it in writing to Priya now, inside the due diligence period, so she can extend, object, or terminate. A title defect discovered by the broker and held quietly until closing is a misrepresentation problem for the brokerage.
- Amend the contract to add Ana as a seller, or obtain a spousal joinder - in writing, before Friday.
- Do not accept Mateo's assurance as final. 'Her name isn't on anything' is the exact sentence that generates title claims and license complaints.
2. How should the acequia easement and shared-well issues be handled before the due diligence deadline?
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Acequia. The community ditch is a recorded (or prescriptive) easement with a Mayordomo and, in many cases, an acequia commission. The broker should obtain: the recorded easement instrument, a current acequia/ditch status letter or assessment statement, and confirmation that the ditch does not run through the building envelope, the septic field, or the leach field. Confirm whether the easement carries maintenance assessments that run with the land - they are a recurring cost the buyer must price in.
Well. For the 1978 shared-well agreement, the file needs:
- The recorded agreement and any amendments, plus the present well-share allocation
- A transfer letter from the well-share association signed at closing
- A current water quality test (bacteria and nitrates; arsenic is a real concern in parts of New Mexico)
- A well permit or permit number with the Office of the State Engineer
- A pumping/yield test, which is the report that hasn't come back
Delivery. These are material lender and buyer conditions. Because the well test will not be back by Friday, the broker's job is to get every available document into Priya's hands now and convert the outstanding test into a written extension - not to hope the lender forgets.
3. How should the extension be handled, and what happens if Friday passes with no action?
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Never let a deadline lapse by silence. A text saying 'we're working on it' is not an extension.
Correct mechanics:
- Prepare a written amendment or counteroffer requesting a stated extension (e.g., five days) signed by the buyer.
- Deliver it per the contract's delivery clause - not by phone call - and obtain written acceptance from Mateo.
- Until Mateo signs, the original Friday deadline controls. A request for extension is itself a counteroffer; the original contract terms remain in force while it is pending.
If Friday passes:
- If Priya has not waived contingencies and has not terminated, the governing contract form controls. Many forms provide that the due diligence period simply expires and the buyer proceeds with whatever information exists, while others require an affirmative notice to terminate. Read the actual form in the file; do not assume.
- If Priya terminates for cause under a contingency, the earnest money is generally returned to her. If she waives contingencies and defaults later, the seller's remedies apply.
- If Mateo refuses the extension and the missing well test is a lender condition, the parties are heading toward a financing failure. Document the sequence - refused extension, missing document, lender condition - in the transaction file.
Best practice: advise Priya in writing, two days before expiration, of exactly what is outstanding and what her options are. That memorandum is the best defense if the deal later unwinds.