Legal Question in Real Estate Law in California

Re: Signing quit claim for Title on new home purchase

If you sign a quitclaim deed to the property, and your husband takes title to the property as a married man, as his sole and separate property, the property will be presumed, under California law, to be your husband separate property, and you will have no interest in the home.

If community property assets are being used to purchase the home, you should question why the escrow company is requiring a quitclaim deed, why the lender will not allow you and your husband to take title jointly, and why the property is being vested in your husband's name alone.

You should also ask your escrow company about taking title as "community property with right of survivorship," a new form of title authorized by the California legislature, which is to be implemented sometime in the middle of this year (i.e., beginning of June or July 2001).

Re: Signing quit claim for Title on new home purchase

The escrow company is probably passing along an instruction from the lender.

Whether you are losing any rights would depend upon the source of the down-payment money. If the down payment is made with community funds, you would have a partial interest in the house, and executing a quitclaim surrenders that right. If, however, the purchase is made with funds that are your husband's separate property, you do not (at closing) give up any rights, since there is no community interest and you haven't got any rights to give up.

There is nothing unusual about what's happening; it's rather common for this situation to arise when young couples with different credit backgrounds buy their first homes.

The title will vest, at close of escrow, in your husband, as his sole property. Nevertheless, if the mortgage payments are made with community funds, the community (meaning you as well as he) will gradually acquire a legally-recognized interest, even though it is not shown on the recorded deed.

You are entitled to separate legal representation if you wish it, and I suggest that you at least have the escrow officer explain what's going on to your complete satisfaction.