Legal Question in Real Estate Law in California

Re: mother in-law

Are you sure the second deed "replaced" the first one? Presumably, your mother-in-law would have granted you and your wife an interest in the home via grant deed, and this would not "replace" the prior deed.

At any rate, any co-tenant can sue for partition. If you, your wife, and your mother-in-law are all on title, then almost undoubtedly, any one of you can sue the others for partition. The process is a bit complicated and typically, parties to a suit for partition are represented by attorneys familiar with the process.

Your email doesn't say if there are written agreements in place between the parties. Presuming that there are not, partition should be an option. You are better off trying to resolve amicably, because of the expense. In a partition lawsuit, absent written agreement, attorneys' fees are not generally recoverable. However, costs are typically recoverable and spread out pro rata from the proceeds of the sale.

You should immediately seek out an attorney familiar with real estate litigation, and especially title and partition issues. We are real estate litigators with extensive experience in partition actions. If/When you are ready to proceed, please feel free to call or email. Consulations are at no charge.

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Re: mother in-law

These types of disputes are very complicated, so you should consult with an attorney as soon as possible.

I cannot tell from your post if you are living in the property. If I understand your post correctly, it sounds like your wife's mother owned the house with and had a mortgage. As part of this gift, it sounds like she refinanced with you and your wife becoming co-borrowers and you were both added as co-owners of the property. If those assumptions are true, it sounds like you have a pretty decent case. However, I would need to review the facts in detail with you as well as the allegations of the lawsuit to determine the exact legal basis for her claim to remove you from title to the property.

This sounds like a quiet title action, which is very difficult to defend without an attorney. A cross-complaint for declaratory relief is probably in order, but a partition lawsuit is mainly used for forcing a sale of the property to divide the proceeds.

Feel free to contact me for a complimentary consultation on this matter.

Re: mother in-law

Yes, you can defend her lawsuit and also sue for partition. Real estate agreements are suppose to be in writing and if she doesn't have anything in writing supporting her claim, she may have a problem. We have handled a number of these claims and would be happy to review it further if you contact our office.

Re: mother in-law

Yes, you will likely want to counter sue. I have worked on many cases like this. I'm in Southern California, give me a call.

Re: mother in-law

First, if you have been served with a summons and complaint, it is important to get a responsive pleading, usually an answer, on file with the court before the time to respond expires, after which the plaintiff could take your default.

If the gist of the suit is "quiet title," a default is not quite so injurious to your chances of a favorable outcome as in other types of suit, because quieting title must be done on the srength of the plaintiff's evidence, and not just the failure of the defendant to respond and defend, but, still, you don't want to be in that weakened position.

Successive deeds to the same property don't "replace" one another, strictly speaking. Each new deed, when executed, delivered and recorded gives a new aspect to the overall public record of who owns the property. So, if there is a limitation, defect or fault in a previous deed, a subsequent deed made by the earlier deed's grantee may just pass along the title defect to the new grantee.

On the other hand, a properly made, delivered and recorded deed is effective to transfer the grantor's interest, or whatever portion of her interest is granted by the deed, to the grantee(s).

The requirements for an effective deed are (1) an adequate description of the property; (2) names of the grantor(s) and grantee(s); (3) a granting or "habendum" clause ("Grantor hereby grants [or quitclaims] unto grantee a one-half interest in Blackacre.....") (4) grantor(s)'notarized signature(s); and (5) delivery of the deed to the grantee(s).

Failure to record does not destroy the effectiveness of the deed; it is still valid as between the parties and persons with notice thereof. However, failure to record a deed leaves the grantee open to challenegs from future bona-fide purchasers of the same land who buy and do record their deeds.

A partition action can be brought as a cross-complaint to a quiet title or most other types of suit, but probably not to an unlawful detainer. The right of partition is automatic between co-owners, but can be lost through waiver and perhaps otherwise. Waiver has been inferred from contracts such as rights of first refusal, development agreements, and the like.

Almost all real-property disputes involve technicalities as well as high dollar values that as a practical matter require retaining an attorney with appropriate experience, especially when a suit has been or is about to be filed.

I hope this is a little more useful that a mere solicitation of your business.