Legal Question in Real Estate Law in California

Re: real estate title

It's not only not legal, it's not possible, at least in one sense, because a forged deed is void and conveys no title. This is not to say crooks don't get away with it from time to time; they do. However, once discovered, the fraud can be undone and the perp sent to prison.

What is more likely here is that the 2nd husband severed the joint tenancy and turned it into a tenancy in common. It is perfectly possible and legal to do this EXCEPT when the former joint tenants were married to each other at the time, the severance without notification would probably be a violation of the duty marital partners have to deal with each other in an open, candid and above-board fashion. Still, he could do it, but up-front disclosure was probably necessary to comply with the law. Probably a wrist-slap rather than a prison type transgression.

Let me explain a bit. Holding property as joint tenants gives each joint tenant a so-called right of survivorship, meaning that when the first joint tenant dies, the surviving joint tenant instantly and automatically becomes the sole owner. Neither joint tenant can pass his or her half interest to heirs - there is nothing to pass because the other joint tenant succeeds to 100% ownership as a matter of law. Many remarried couples with earlier families don't want this to happen, so they prefer to hold property as tenants in common rather than as joint tenants. This allows each to bequeath his or her half interest to his or her children by a prior marriage.

The deed a joint tenant would record to break the joint tenancy and turn it into a tenancy in common might look to a non-lawyer like a deed giving the entire ownership to the grantee. Assume the joint tenants are X and Y. If you study it closely, all it does is convey half ownership from X as a joint tenant to X as a tenant in common. Y's ownership is unaffected except that she is no longer a joint tenant, she is a tenant in common. Joint tenancies require the continued agreement of each joint tenant, and when X no longer wants to be a joint tenant, the way out is to deed his half to himself as a tenant in common. (The reverse process doesn't work, by the way; both tenants in common must participate to change their ownership to a joint tenancy).

Finally, my breaking-a-joint-tenancy theory is just a guess. There may indeed be a serious fraud here. Still, I'd give him the benefit of the doubt. After all, they've been together for 12 years since this happened. Most crooks would split much sooner.

Re: real estate title

It would be called forgery. Forgery is a crime and not legal in California, or any other state for that matter. Also, property purchased during a marriage is presumed to be community property regardless in whose name it is held.