Legal Question in Real Estate Law in California
My mother's husband passsed away unexpectedly this year leaving no will to his home. Two months later, my mother received a UD case stating that she is being sued for unlawfully staying in that house. The title of the house is under the husband and his only brother as joint tenants, but the brother had an agreement with the husband and signed a quit claim several years back. The quit claim wasn't registered and recorded and when he passed away and a previous attempt was made by the brother's attorney to transfer title to him through an affidavit of death but wasn't able to because they didn't have a death certificate. The quit claim is now recorded, but records in the assesor's office still indicate the tax bill sent to the brother's address made by the previous recording before we recorded the quit claim. My question is what can my mother do knowing she has full right to the property and what can she do about the UD case that's set for a later date. Thanks to ones for their input and expertise.
2 Answers from Attorneys
First, the use of the unlawful detainer action is restricted to situations expressly authorized by statute. With narrow exceptions, the relationship of the parties must be (or have been) landlord and tenant. Your mother's situation does not appear to be one for which ullawful detainer is appropriate. A defense should be made on this basis. Someone alleging ownership and a right to possession under the circumstances you describe should bring an action to quiet title, or for ejectment, rather than unlawful detainer.
Then, the facts you describe point to your mother being the owner.......the records in the assessor's office will not be dispositive....the records in the recorder's office being those which determine legal title (and legal title may differ from equitable or beneficial title in some cases, such as when there is an unrecorded deed, or a resulting trust).
The situation seems to call for immediate intervention by a lawyer retained by your mother, first to put a stop to the (apparently) improper unlawful detailer action, and then to place the issue of ownership before the court in an action to quiet title in your mother.
An examination of the deeds and records may show that your mother is the sole owner, or perhaps she shares title with the husband's brother, but even as a part owner she would have the right of possession and would not be subject to involuntary dispossession by any kind of legal action.
I emphasize that prompt action is probably necessary, which may include filing defenses in the UD action and/or initiating a quiet-title suit probably including a TRO request to halt any eviction.
Who was the quitclaim to? If your father quitclaimed to his brother, before he died, your brother owns the property and the joint tenancy was severed. If his brother quitclaimed it to him, the joint tenancy was again severed, but the property is now part of your father's estate.
Has any probate been opened? If a probate has been opened, the administrator or the executor has standing, not the brother, unless the brother was appointed the administrator or executor of the estate.
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