Legal Question in Real Estate Law in California

Re: Selling of comunity property

If you are on title to the home, and you two do not hold title as tenants in common, your wife cannot list the property for sale by herself. Has the Family Law court made any determination as to the status of your community property, and or its disposition? If not, your wife is attempting to liquidate an asset of the community property estate which has yet to be divided, and you may be able to get an order from the Family Law Court preventing her from doing so. Contact your family law attorney - he or she is the one who should contact the realtor and advise them that they do not have a valid listing, and review the matter for any possible action he or she may want to take in the Family Law court.

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Re: Selling of comunity property

Since you captioned your question "selling of community property," I'll assume that's what it is; and I'd also note that even if title were held "of record" in some other way, such as joint tenancy or tenancy in common, there would in all probability be a significant community interest in the home due to paying the mortgage or making improvements with community funds (such as earnings of either or both of you during marriage).

I'll also assume that you aren't using a lawyer to handle the divorce for you; if you were, you probably wouldn't be asking this question on LawGuru.

Community-property law requires that both parties give written consent to the disposition of community real property interests. See Family Code section 1102 for the exact language of the law. Also note 1102(c)(2) raising a preumption of validity of a transfer to a bona fide purchaser (BFP) without knowledge of the marriage relationship. For this reason, you may want to verify that you took title as "husband and wife" or as community property, which implies a marriage relationship. The recorded deed would be adequate notice to keep a buyer from being a BFP without notice.

If the real estate agent finds a buyer and they attempt to close a transaction, very likely it won't go through, because someone (buyer, buyer's agent, title insurer, lender, escrow holder) will notice that you are missing from the transaction. However, you improve your chances by bringing the problem directly and immediately, and in writing, to the listing agent. (Perhaps the listing or listing agreement doesn't really exist - maybe they've just been discussing it, or what the house is worth.)

You also might ask another agent or broker to see what they can find on the local multiple listing service about the supposed listing.

Consider complaining to the agent's broker or even the Department of Real Estate if the agent accepts a listing that is incapable of being carried out legally without your consent.

Unfortunately, even though a valid sale could not be closed, a listing agreement is valid with only the wife's signature on the agreement. The wife can list, but cannot complete the deal by selling. This raises the difficult issue that the agent can earn a commission by finding a buyer, even though the owners don't sell and there are no sale proceeds from which to pay the commission.

Re: Selling of comunity property

In addition to the comments of Mr. Gibbs and Mr. Whipple, once a petition for dissolution has been filed and summons issued there are temporary restraining orders that apply to the person filing and the other person when served. These restraining orders prevent the sale etc of any property without a court order or signed agreement. Since you stated you are in the middle of divorce those restraining orders would be in effect.