Legal Question in Real Estate Law in California
2 siblings own 2 properties in California.
Title: join tenancy, both partners are on title of each property
Loan: one sibling is on loan for property A; both siblings are on loan for property B.
Siblings are looking into ways to separate properties so that each sibling will end up with one property.
As a result, they would like to achieve the following:
Property A will stay with Sibling 1.
Property B will stay with Sibling 2.
How this needs to be done legally?
My understanding is that both partners need to file Quit Claim Deed for each property.
How this change needs to be processed legally? And can it be done without paying transfer tax?
3 Answers from Attorneys
Recording a quit claim deed will take the siblings off of title, but it will not affect the fact that both siblings are responsible under a written promissory note for one of the properties. The only way to change that is with the lender's permission, usually through refinancing. Lenders are very reluctant to do that, even though they recoup their loss on a default most often through a nonjudicial foreclosure sale.
Quitclaiming a part interest would also violate the "due on sale" clause in the loan agreement on the jointly-financed property, so a negotiation with that lender is highly advisable before concluding any transaction.
I don't think you can avoid a transfer fee. Also, the transferred interests would be subject to reappraisal for property-tax purposes, and the exchange may have income-tax effects (capital gains or losses).
As you should be realizing from the previous answers, what you want to do is not as simple as it seems. It is not really all that difficult as it may seem from the answers though, either. It would be fairly easy for an experienced real estate attorney to sit down and figure out what steps you need to take and what the potential costs would be. It is just too complex to do in an internet Q&A format. I would be happy to give you a free 1/2 hour consultation with you and your brother. Then if you need or want additional assistance from me in arranging your transaction, we could do that at my regular rates. I have conference facilities in downtown San Francisco. Please let me know if you would like to make an appointment.