Legal Question in Real Estate Law in California

Re: Who's Property?

Both he and you could have liability to the person who was (or thinking about)filing the lawsuit against him under the Fraudulent Transfer Act. This prohibits one from transfering a property for less than adequate consideration in order to hide the asset from a potential claimant. There are a number of other issues involved here, and it may take a court of law to untangle everything.

Re: Who's Property?

Well, the first problem here is that transferring property to "protect" it from creditors is fraud. Not only that, when the property is real estate, it is easily discovered fraud. Further, the transferor (your boyfriend) and the transferee (you) are considered "in pari delicto," meaning equally at fault.

Upon discovering the fraud, which is a high risk for the two of you, the creditors can ask a court to set aside the transfer, then subject the house to their liens.

Except for the attempt to avoid creditors, the transfer (deed) to you is probably valid, assuming the deed is accurately drawn up and was delivered to you.

Another possible problem is whether the transfer violated any provision of the loan agreement. Some loans secured by deeds of trust have "due on sale" provisions or the like; if one exists here, the lender could require the loan to be paid off. This doesn't affect the deed, however.

I can't give you any really specific advice without knowing more details, such as the amount and nature of the creditor claims, the quality of your relationship with boyfriend, how much equity you have in the house, whether the loan is a good one or could be refinanced to advantage, and other particulars.

Under some circumstances, the best course might be to get rid of the boyfriend, refinance the house, and pay off (or settle with) the creditors. This would cure three big problems. However, in other circumstances, this might not be desirable, or even feasible.

Since (as between the two of you) the deed is probably valid, the boyfriend is a guest, lodger or short-term tenant of some kind. As such, he can probably be evicted. You might also consider whether you need a domestic violence restraining order for your personal safety.

Finally, since the boyfriend's creditors can attack the transfer of the house to you under the Uniform Fraudulent Transfer Act (Civil Code sections 3439-3439.12), you should seek legal assistance in de-fusing the creditor claims through settlement or otherwise.

Re: Who's Property?

I am an expert in this area of law. You will need representation. He will argue that he is entitled to the property via constructive trust. However, your position is stronger. You should not act without first consulting an attorney. The notice to quit must be done correctly if done at all. You may contact me.

Re: Who's Property?

As you are sole owner, you can give him a 30 day notice to vacate. Please contact our office if you any further assistance.