Legal Question in Real Estate Law in California

Re: precedence divorce decree or deed of trust

The starting point for figuring out who owns a particular piece of real property is always the office of the county recorder. If it appears from the record of title at the Recorders's that the H&W Trust owns the house, then that shows that the H&W Trustee(s) is/are the legal owner(s).

However, the story doesn't end with determining "legal" ownership. So-called beneficial ownership can be different than legal ownership. In other words, the person whose name is on title may not be the "true" owner.

The legal owner is presumed also to be the beneficial owner. Evidence Code, section 662. However, that presumption can be overcome by "clear and convincing" evidence that someone other than the legal owner is entitled to be, or become, the legal owner, and the current legal ownership shown in the record is an accident, oversight, temporary arrangement that can now be put aside, etc.

A divorce decree granting ownership of a particular piece of community property to the husband or wife is not usually self-executing; that is, just because the decree allocates A, B and C to the husband and X, Y and Z to the wife does not, in and of itself, accomplish the transfer of ownership, but merely the right to expect such a transfer.

(Now, I hasten to add that I don't regularly practice family law, but the foregoing paragraph is the way things seem to work, based on one divorce case I took on at a late stage, and cases I've just noted while researching this answer.)

So, the bottom line is that I THINK the person who should have received the house under the divorce decree will prevail against claimants claiming under the trust. I'm pretty sure it will require a quiet title suit against the adverse claimants (or, with luck, their out-of-court cooperation).

I should probably add that I'd be a little concerned about the reason given for failing to carry out the divorce decree....if a judge (or opposing party) suspects that there was an "improper motive" for not doing so, it may limit the claimant's rights on the basis that they come into court with "unclean hands." Of course, not refinancing may have been perfectly permissible under its terms.

Re: precedence divorce decree or deed of trust

You are not making a lot of sense; a deed of trust is what you give to a lender as security for a loan. Perhaps you mean how title is held? If 2 people hold title as joint tenants and one of them dies, the other person automatically owns 100% of the property. If there was a judgment of dissolution (divorce) that provided that the property was supposed to have been divided or somehow transferred and it was not, and the heirs of the deceased want to claim an interest in the property, then unless all who hold an interest in the property acknowledge the validity of the court judgment,suit would need to be filed in order to keep a surviving joint tenant from getting 100%. The result would be different if title is held in some other manner, such as tenants in common. Take all the docuemtns to a real estate attorney for review, as this is one of those aras where the actual docuemnts need to be examined.