Legal Question in Real Estate Law in California
As a result of my divorce settlement 2 years ago, I gained sole title to what had been our marital real property in exchange for buying out my ex-husband's share of equity. I also assumed responsibility for the rather large encumbrance (while my ex-husband is still on the mortgage loan, I make all morgage payments).
I am about to make my final lump-sum payment to my ex, after which I would like to refinance the mortgage loan with the help of my current partner as co-borrower (I cannot otherwise qualify for the loan refi). My broker has suggested that I will need to 'temporarily' transfer the Property out of my Trust and add my partner's name to the Title as co-owner. After the refi loan is complete, my partner will Quit-Claim the property back to my Trust (my partner has agreed to pre-sign the Quitclaim Deed). I have 2 concerns:
Adding a non-spouse to the title of my Property, even temporarily, could trigger a reassessment resulting in higher property taxes...Additionally, even if my partner Quitclaims the Property back to my Trust after the refi, the Title may be clouded. Is there another way for my partner to co-sign for a loan without my having to add him to the Title? He is named as Successor Trustee to the Trust, (as well as sole beneficiary in my Will). Wouldn't a lender be satisfied with that? Please Advise....
3 Answers from Attorneys
I can't think of any lender who would be satisfied with being defrauded.
If the lender is suggesting these maneuvers, it can hardly thereafter claim fraud. Also, who is "on title" is a matter of public record. I believe lenders fairly routinely ask one spouse to step aside for credit-rating purposes. However, many loan agreements also contain a "due on sale" clause that could be triggered by a subsequent transfer of a half interest to a spouse. Even more likely when buyer and seller are not married.
Whether the broker's suggestion is an invitation to commit fraud or not, it has the drawback of triggering a reassessment of the transferred half interest. This used to be universally bad, but so many homes have declined in value recently, one cannot say for sure. If you were married, no reassessment.
Clouding of title could be a problem, if the document drafting is unskillfully done. A related question might be whether existing title insurance would be compromised, or coverage lost.
I generally do not like to see cosigner or guarantor arrangements, but that may be a possibility here. It would provide credit support without title or tax side-issues.
I don't see any fraud here at all. Lenders do not want property in a trust when their deed of trust records. It is standard practice to deed a property out of trust to the borrower, record the deed of trust, and then deed it back to the trust. The unusual twist here is that you are adding a new owner/trustee/beneficiary. So what you will be doing is making a gift of 1/2 the property to your new partner. First off, are you sure you want to do that without some kind of "non-nup" between you? Second, that will trigger documentary transfer tax on 1/2 the value of the property, as well as having gift tax consequences. Your real problems here are tax, not title. You should cousult a CPA who knows his or her real estate transactions taxation well.