Legal Question in Real Estate Law in California

A courthouse is not where you will find recorded liens. You need to go to the County Recorder's office for the county in which the home is located, and look for any and all liens or encumbrances recorded against your property. You can also contact a title company and pay a few hundred dollars for a Preliminary Title Report, which will give you about the most accurate record at that point in time of what might be affecting title to your home.

Remember, however, that any liens or encumbrances your brother incurs are his, and his alone. They only attach to his 1/2 interest in the property. The liens cannot attach to your 1/2 interest in the property. Unfortunately, you cannot remove him from title - it requires a deed from him to you. The problem you face with recording such a deed at this point is that it will probably be seen as a fraudulent conveyance or preference. These are transfers of your brother's property to frustrate, delay or hinder his creditor's ability to collect the money he owes. You cannot simply transfer assets out of his name to avoid his creditors. You need to consult with a real estate attorney.

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First, in most cases creditors can only go after the partial interest the debtor owns, not the entire piece of property, so the worst that could happen is that you would end up with a new co-owner. While this is a possibility, creditors are usually reluctant to create and enforce liens on partial interests because the market for them is not good.

Next, I would not advise that your brother transfer part title to you unless you pay him fair value. A gift or a sale for less than a fair price would be a fraudulent transfer. The law defines a fraudulent transfer as one that has the purpose or effect of hindering, delaying or defrauding a present or anticipated creditor. See Civil Code sections 3439 to 3439.12. If you bought him out for a fair price, he would have some cash hopefully to apply to solving his business problems, and you would have full ownership of the home with no possibility of having a stranger picking up the other half interest at a lien sale.

Be sure your brother is aware of the summons, has a copy of it and the accompanying complaint, and is taking steps to answer and defend.

Depending to some extent on the nature of the business problems and the kinds of claims made in the lawsuit, I'd suggest finding a lawyer with some experience in litigation of business or real estate disputes, especially from the defense side. If there is no apparent conflict of interest, the same lawyer could probably advise you as well as defend your brother.

Mr. Gibbs is correct that the courthouse does not maintain records of judgment liens on particular properties. If people have a judgment against your brother and have recorded an abstract of judgment in the county recorder's office in the county where your joint property is located, there is a lien on the property to the extent of his interest. The other answers are also PARTIALLY correct regarding fraudulent conveyances. A gift is not automatically a fraudulent conveyance just because it is done to put property out of the reach of creditors. It is only a fraudulent conveyance if you do not have other assets sufficient to answer for the debt, or by making the gift you reduce your assets to the point where you no longer can answer for the debts. If he retains sufficient assets to pay the legitimate claims against him, he is free to transfer that asset to you so that it will not be caught up in his problems.