Legal Question in Real Estate Law in California

if a parent wants to transfer propert to their child so they assume their mortgage, is the only option to buy their house


Asked on 5/26/11, 9:22 pm

3 Answers from Attorneys

Bryan Whipple Bryan R. R. Whipple, Attorney at Law

First, are we speaking of an adult child (over 18)? Minors owning real estate is a whole 'nother can of worms.

Assuming the child is a legal adult, I am still left wondering what you are trying to accomplish. Transferring your property to someone else doesn't transfer liability for the mortgage (note and deed of trust). All it does is violate the due-on-sale clause and make the entire balance immediately due and payable at the lender's option. Transfers for less than fair market value are also often fraudulent and can be set aside in a creditor lawsuit.

Please re-ask your question with further details including the child's age, the price proposed to be charged or paid, and an explanation of what you hope to accomplish. The answer is probably going to be that the terms of your mortgage don't allow a transfer without payoff, but who knows what the advice will be.

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Answered on 5/26/11, 10:01 pm
Anthony Roach Law Office of Anthony A. Roach

A buyer of real property subject to an existing mortgage or deed of trust is going to need the lender's consent to assume the existing financing. Otherwise, the transfer is "subject to" the existing mortgage or deed of trust, and the original owner remains personally liable on the underlying promissory note.

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Answered on 5/27/11, 10:11 am

Whether you sell it or give it to your child, the existing mortgage will become immediately due in full. The child will have to get their own loan. Depending on how long you've owned the property, you may also be hit with capital gains taxes if you sell it. You may be hit with gift taxes if you give it to them, and you will definitely deprive them of the capital gains exclusion they would get if you gave it to them by will or trust after you pass away. Transferring property to your children during your lifetime, unless it is a completely arms-length transaction as if they were a stranger buying the property, is almost invariably a really really bad idea.

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Answered on 5/27/11, 10:37 am


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