Legal Question in Real Estate Law in California

Re: only husband on loan...husband and wife on deed??

This is standard protocol. By executing the quitclaim, you release all interest in the property. Ideally, post closing, your husband then executes a quitclaim to you of an undivided half interest in the property. Or alternatively, he can execute a grant deed to both you and himself as joint tenants.

Re: only husband on loan...husband and wife on deed??

As the previous answer states, this quitclaiming at purchase and financing is quite commonplace.

One thing you don't mention would seem to me to have a large bearing on your risk here........where is the down payment coming from? If he is putting up the whole down payment from separate-property funds, you really have little to lose in any event. If, however, the source of the down payment is community funds, or your separate property, I would submit that the marital community, or you, may have an equitable or beneficial interest in the house that overrides "bare legal title" as shown on the records down at the courthouse.

Further, the Family Code imposes a duty upon spouses to deal with each other in business and financial matters in the utmost good faith.

So, I'd say you aren't forfeiting all your rights. This transaction may be placing the two of you in a position where you will find out, sooner rather than later, whether there is sufficient mutual trust and dependability in this marriage. If so, and if you have little or no separate-property investment at stake, this may be a valuable test, well worth a possible small loss.

Another possibility you might consider is a post-nuptial agreement in which he gives you some legally enforceable reassurance about a future conveyance of the title to the house to the two of you - either as tenants in common or joint tenants, as Mr. Guerrini mentions, or as community property, the more usual way for married couples to hold their family house.

Next, assuming that the closing is taking place through a reputable escrow company, I'd suggest asking the escrow officer, in private, about this common but suspicion-arousing way of obtaining a loan where there is a disparity in creditworthiness.

Finally, I would obtain an assurance from the lender that transferring an interest in the property shortly after closing the loan will not be a breach of a "due on sale" clause or similar term of the loan agreement.

Someday I think I'll do some serious research into this rather silly practice of taking one spouse "off title" briefly while the loan is closed, with everyone apparently knowing (wink-wink) that the poor-credit spouse is supposed to be back on title soon after the dust settles.

Who's fooling whom, really? And why is a lender worse off with two borrowers on the hook than with only one, even if the second borrower's credit isn't great? Some credit should be better than none at all! I guess I just don't get it.

Re: only husband on loan...husband and wife on deed??

Mr. Guerirrini and Mr. Whipple do not know what they are talking about.

If you execute a quitclaim deed to property you do not have title to, there is no transfer of your interest. A quitclaim deed does not pass after aquired title . (In other states, this is known at the doctrine of estoppel by deed.) A quitclaim deed is actually not a deed, but an estoppel.

If you have title to the property now, your quitclaim deed satisfies the requirements of California's transmutations laws.

I'm not seeking your business, but I hope that you seek qualified legal advice, before jeopardizing your legal rights. Anyone else is a grifter and a solicitor.

Very truly yours,