Legal Question in Real Estate Law in California

It depends on whether or not your father has knowledge of the deed, has recorded an affidavit of death of joint tenant, and had knowledge of the quitclaim before recording the affidavit of death of joint tenant. It also depends on whether or not the deed was properly executed and notarized. If the deed was not properly prepared and executed, it is not valid and everything else is irrelevant. If it is a proper deed, then we have to look at priority of title. California has what is called "race/notice" priority in title. That means recorded title takes priority over all other conveyances or encumbrances regardless of when they were created (winning the race to the recorder), UNLESS the person recording their interest had actual or constructive notice of the prior conveyance or encumbrance. So, if at any time prior to recording an affidavit of death of joint tenant, your father had knowledge of the quitclaim deed, the quitclaim takes priority over the interest he acquired upon death of your step-mom. In that case your father's trust owns half, your step-brother owns half and he can record the deed to make that valid as against the whole world by winning the race to the recorder. Where this gets tricky is that if your father had knowledge of the quitclaim, meaning your step brother has a separate half ownership, you have a conflict between record and legal title. If your father were to give a deed out of the trust of 100% interest in the property to someone who does NOT know about the quitclaim, and that person records the deed before your step brother records the quitclaim deed, your step brother's interest would be extinguished. Likewise, if your father recorded an affidavit of death of joint tenant without knowledge of the quitclaim deed, the quitclaim was extinquished.

I only disagree with one item in Mr. McCormick's analysis. I think "record title" and "legal title" are synonymous, and the conflict is between "record or legal title" on the one hand, and "equitable or beneficial ownership" on the other.

The problems here arise because an unrecorded deed is valid between the parties and others with actual or constructive notice of it (see Civil Code section 1217), but not valid against a bona fide purchaser for value who records first and has no notice or knowledge of the unrecorded deed.

Another possible complicating factor is the purpose and intent of the grantor in making the unrecorded deed. For example, if the deed contained language indicating an intent that it become effective only upon a future event (such as her death), it is probably invalid. A deed can't be used in place of a will.

You should probably see an attorney about this.

There is a difference between record title and legal title. John Hetland used to distinguish both in his lectures at Berkeley, and in his CEB publications. He is one of the finest legal minds ever to work in real property law in the State of California. His distinction applies:

Suppose O deeds Blackacre to A, and A does not record. Record title is in O, but A has legal title. Thus record title and legal title can be distinct, and different.

In the scenario that you presented, your step mom severed the joint tenancy when she quitclaimed her interest to your step brother. What your father knew is irrelevant, because one party can sever a joint tenancy without the other joint tenant's consent or knowledge. "Each cotenant, whether he be a joint tenant or a tenant in common, may sell or encumber his interest in the property forming the subject of the tenancy at his pleasure, regardless of the knowledge, consent, or approval of the other cotenants." (Thompson v. Thompson (2nd Dist. 1963) 218 Cal.App.2d 804, 807.)

I disagree strongly with both Mr. McCormick and Mr. Whipple's analysis of California's recording statute. Although I frequently disagree with Mr. McCormick, it is rare that I dissent from an analysis presented by Mr. Whipple. California law provides: "Every conveyance of real property or an estate for years therein, other than a lease for a term not exceeding one year, is void as against any subsequent purchaser or mortgagee of the same property, or any party thereof, in good faith and for a valuable consideration, whose conveyance is first duly recorded, and as against any judgment affecting the title, unless the conveyance shall have been duly recorded prior to the record of notice of action." (Civ. Code, sect. 1214.)

In simple terms, it does not matter what the coowner of a joint tenancy knew, but rather what SUBSEQUENT bona fide purchasers for value knew or would have constructive notice of. If your step brother records his quit claim deed, and your father has not conveyed to a bona fide purchaser for value, then the joint tenancy is severed, and he owns the property with your father, in what is known as a tenancy in common. If your father recorded an affidavit of the death of joint tenant, and then conveyed his interest to a third party for value, prior to your stepbrother recording the quit claim deed, then the third party now owns and would win a quiet title action based on the recording statute.

The deed does not have to be notarized to be valid, but it must be notarized to be recorded. If the quitclaim deed was forged, or obtained improperly, it will not pass title if this issue is raised in court.

My previous response was incomplete, and in reading it, I can see that it may lead to confusion and error.

By statute, California does require recordation of a deed severing a joint tenancy within a certain time to destroy the right of survivorship. "Severance of a joint tenancy of record by deed, written declaration, or other written instrument pursuant to subdivision (a) is not effective to terminate the right of survivorship of the other joint tenants as to thesevering joint tenant's insterest unless on eof the following requirements is satisfied;

(1) Before the death of the severing joint tenant, the deed, written declaration, or other written instrument effecting the severance is recorded in the county where the real property is located.

(2) The deed, written declaration, or other written insturment effecting the severance is executed and acknolwedged before a notary public by the severing joint tenant not earlier than three days before the death of that joint tenant and is recorded in the county where the real property is located not later than seven days after the death of the severing joint tenant." (Civ. Code, sect. 683.2 subd. (c).)

Thus for my response to be valid, the quitclaim to your step brother would have to be recorded no later than seven days after the death of your step mother.

Your father, however, may have severed the joint tenancy when he conveyed his share into trust. I would have to review all of the documents, and the underlying facts to be sure.