Legal Question in Real Estate Law in California

Re: Can a spouse change/remove the other spouse from title?

A trust deed is the document that secures a loan with the property. If only his name is on the deed of trust, it is probably because he is the only person borrowing the money from the lender. Your name not appearing on the deed of trust is not the same as you no longer holding title. That would require a grant deed or quitclaim deed. I would be concerned that your spouse has borrowed on the house without your consent. You should contact the title company that handled the escrow, and is usually also listed as the trustee on the trust deed. They may be able to give you more information.

Re: Can a spouse change/remove the other spouse from title?

Married couples sometimes hold title to their residence as joint tenants, but community property is more common, whether or not both are working.

An owner of a joint tenancy interest in real property can, in theory, borrow against that part interest without involving the other co-owner. However, if the lender is aware of what's going on, most wouldn't make the loan, because a half interest in most property is lousy collateral. So, the deal is fishy.

One co-owner cannot remove or cause the removal of another co-owner's name from record title without a court proceeding, whether or not they are spouses.

The most important legal theory here, however, is that the Family Code requires spouses to deal with one another with openness, candor and utmost good faith. Taking out a loan on the family residence without notifying (to say the least) the other spouse/co-owner is very disturbing and warrants your immediate investigation. Note that there is a relatively short statute of limitations for actions on many interspousal frauds and other legal issues.

Finally, there may be a significant community interest in the house, diminishing its joint-tenancy character. To the extent the house is community property "pro tanto," it cannot be sold or pledged by one spouse without the written consent of the other....not even as to the original joint-tenancy half interest.

I would recommend that you get a private consultation with an experienced and trustworthy local family-law attorney. There is something very harmful to your interests going on here, I suspect, and whether it's merely sneakiness or downright fraud, you need to have someone sleuthing it out for your own protection.

Re: Can a spouse change/remove the other spouse from title?

you possibly need a good attorney to review the document which you recieved and tell you what it it is and it's effect upon you and your household. how, when and with what information you confront your husband is quite important and will have a lasting effect upon your marriage -- there is a great deal to consider in this situation and depends on what the doc really is - i have practiced law in the bay area for over 30 year and deal substantially in real estate and if you wish to contact me you may call me at 925-945-6000

Re: Can a spouse change/remove the other spouse from title?

I am assuming when I answer this question that you both took title as joint tenants. A "joint tenancy" is a form of property ownership by more than one person that carries a right of survivorship. (Estate of England (2nd Dist. 1991) 233 Cal. App. 3d 1, 4.)

To answer your first question, one party can unilaterally sever the joint tenancy. (Riddle v. Harmon (1st Dist. 1980) 102 Cal. App. 3d 524, 527.)

This is called enfeeoffment. When this occurs, the unsuspecting or unaware tenant does not lose title, however. The joint tenancy terminates, and the tenants become tenants in common.

In California, joint tenancy was NOT historically considered community property because both tenants are considered owners of a "separate estate." "The statutory presumption that property acquired after marriage except by gift, bequest, devise, or descent is community property (Civ. Code, �� 162, 163, 164) is successfully rebutted by evidence that the property was taken in joint tenancy." (Schinder v. Schindler, 126 Cal. App. 2d 597, 601.)

The legislature destroyed this presumption, however, and effective in 1994, property held in either joint tenancy or tenancy in common is presumed to be community property. (Fam. Code sec. 2581.)

In order for your husband to take you off title completely, a deed would have to be recorded in which you deeded your interest to him. This could be a grant deed, a quit claim deed, or preferably an interspousal deed (which complies with post-1984 transmutation law.)

If you do not remember executing one of these documents, you are probably still on title. I have seen forged deeds come into my office (including some real good ones!) but they are rare and not commonplace. This issue can be resolved by a title search, to determine if a document was recorded transferring your rights to your husband.

To answer your second question, normally both spouses must join in executing a deed of trust that will encumber community property. (Fam. Code sec. 1102.)

The fact that the property is encumbered without your consent is a little troubling, because as one of the other attorneys noted, lenders do not like to get one signature when community property is encumbered. The reason for this is because in California, a spouse who did not consent to the transaction can void a trust deed executed by the other spouse during the marriage. (Droeger v. Friedman, Sloan & Ross (1991) 54 Cal. 3d 26, 36-39.)

Normally (and I use that word cautiously), a lender will require his own title search and will purchase a lender's policy of title insurance. If a lender discovers the property is community property, they will require both signatures.

You should have someone perform a title search for you (possible through a preliminary title report) to determine if he has taken off title.