Legal Question in Real Estate Law in California

Re: Protection from homesteads

No; recording a declaration of homestead will not afford you any protection against a claim of ownership where the claimed ownership would have been acquired, if at all, many years ago. Declared homesteads only afford protection against claims arising later than the declaration. If there is in fact co-ownership, a homestead declaration will be ineffective to prevent the co-owner from asserting her rights.

Your best strategy here is to have an experienced real-estate lawyer review your title, going back to the way your husband and you first acquired title and how it was held; there may even be an issue as to whose money was used to make the purchase. Some forms of co-ownership would be better for your case than others; e.g., holding as joint tenants or community property would in most cases be better for your being sole owner now than if title had been taken and held as his separate property or as tenants in common.

Even if the daughter is a co-owner, a good lawyer can find a way to reduce her share of the sale proceeds by charging her share with claims for contribution for expenses over the years.

Further, if daughter is shown to be on title, you are not going to be able to complete a sale without her cooperation or a court order. You need to have an attorney's or title company's opinion ASAP, so that if legal action such as a partition suit or suit to remove cloud on title or for quiet title is necessary, you can have it under way and over with before you need the money.

If the sale has progressed to the point where you think you have a deal with a would-be buyer, presumably someone has obtained a preliminary title report. If the daughter has a possible interest, that should be reflected in the title report. If it isn't, that isn't a total green light, but maybe is at least somewhat reassuring.

Contact me with further details if you'd like, for a more specific opinion at no charge.