Questions and Professional Answers

• grant deeds

  We were told by the firm preparing our trust to supply them with copies of ''grant deeds'' for all the properties we own. As these properties all have mortgages on them we only have ''deeds of trust''. What is the difference, are grant deeds really necessary to set up a trust, and if so, how do we get them?

  • Re: grant deeds

    Howdy:A grant deed is title to the property.A deed of trust is money.If you borrowed to buy the property, you received both when you bought it.The lawyer preparing the trust should do the deeds as part of the trust; although many do them for an extra charge. I don't prepare unfunded trusts, so the deeds are included. I would guess it's different with your lawyer.If you websearch for "california grant deed," you'll probably find the form online. Or, a local escrow company can prepare them for you .. expect a charge of about $100.Shop around for this. It's a pretty routine duty.If you still have questions, post again.

    Robert Restivo
    Restivo Law Firm

  • Re: grant deeds

    You say a 'firm' is preparing your trust. I hope it is a law firm. If so, you should expect better information from them; it shouldn't be necessary to turn to outsiders for basic assistance you're already paying for.Property is conveyed from the buyer to the seller by grant deed (or, occasionally, quitclaim deed). Your grant deeds and quitclaim deeds are the deeds by which you acquired ownership of properties acquired by private purchase. They would have the buyer's and seller's names prominently mentioned on them. You may also have property acquired by inheritance, foreclosure, tax-sale purchase, etc., where the deed would be something other than a grant deed. In addition to the various deeds by which you acquire property, you have 'deeds of trust' or 'trust deeds,' which are used to finance or refinance property. A trust deed is a way to give a lender security for a loan. A trust deed gives a third party (the trustee) the power to foreclose and sell the entrusted property if the note is not paid according to its terms. If you are having a trust prepared for estate-planning or similar purposes, the attorney preparing it will eventually want copies of all deeds affecting property you want to put into your trust, not just grand deeds but trust deeds as well.

    Bryan Whipple
    Bryan R. R. Whipple, Attorney at Law

• California real estate law

  Is Calif a lien theory or title theory state? Google doesn't know! Is there a practical difference btwn a grant deed and a gift deed? Are all gift deeds grant deeds, but not all grant deeds gift deeds? Google doesn't know.

  • Re: California real estate law

    Grant deeds are used to convey property -- either as a gift or for monetary consideration. Therefore, a "gift" deed is a type of "grant deed". As for the theories, "this state, at an early date, adopted the 'lien' theory of mortgages, and it adopted the 'title' theory in reference to deeds of trust." See Bank of Italy etc. Assn. v. Bentley (1933) 217 Cal. 644, 656, 20 P.2d 940, 944. With deeds of trust, title to the property actually is conveyed to the trustee who retains such title until the debt is satisfied or the property sold to enforce payment.

    Robert F. Cohen
    Law Office of Robert F. Cohen

  • Re: California real estate law

    Mr. Cohen is quite correct. Might I suggest using a search engine more directed towards the legal field. Google is ggod for basic research, but not for the detailed type that you are looking for.Try HG.com, FindLaw.com or our site, theLawShack.com.Scott Linden

    Scott Linden
    Schofield, Grossman & Linden

  • Re: California real estate law

    in a nutshell, california can be both, depending on the type of encumberance. meaning, certain encumberances are deemed liens (i.e. a mechanic's lien), while others are deemed title encumberances (i.e. a trust deed on a home where the trustee holds title until the loan is paid off). next, a grant deed can be either in the form of a gift or thru a sales transaction. a gift deed requires no consideration in order for the grantor to convey its interest to the grantee. hope this has helped.

    H.M. Torrey
    The Law Offices of H.M. Torrey

  • Re: California real estate law

    The whole thing is really a misnomer. Attorney Cohen's citation is correct regarding Bank of Italy National Trust & Savings Association v. Bentley (1933) 217 Cal. 644.A great deal of the language in that case is no longer relevant. For example, the case states that "ordinarily a deed of trust may not be judicially foreclosed." This is no longer applicable in the modern age. (See Code of Civ. Proc. sec. 725a.)That case also states that "the statute of limitations never runs against the power of sale in a deed of trust..." This is also no longer true. In 1982, the California legislature enacted sections 882.020-882.040 of the Civil Code, which establish for the first time a statute of limitations on the exercise of a power of sale in a deed of trust. (Miller v. Provost (1st Dist. 1994) 26 Cal. App. 4th 1703.)The point of all this is that there is really no longer any difference between mortgages and deeds of trust. Many people tend to call deeds of trust mortgages. John Hetland writes that a "[deed of trust's] function is the same as that of the morgtage, i.e., to secure an obligation, and as a result there is little substantive difference between the two." (California Real Estate Secured Transactions (C.E.B., 1970) sections 2.4, 2.5, p. 10.)Many people will speak of their deed of trust as a lien on their property, even though my fellow attorneys are correct to point out that the trustor conveys title in the form of a power of sale and a power to convey to the trustee. A trustor can convey the property that is encumbered by a deed of trust, subject to some limitations, and the new owner will be "subject to" the existing deed of trust.As you can see, the distinction has become academic due to the passage of time and modern legislation.If you are interested, a good source on this subject is Maxwell, Riesenfeld, Hetland and Warren's California Cases on Security Transactions in Land (4th Edition).Very truly yours,

    Anthony Roach
    Law Office of Anthony A. Roach

• grant deeds

  Do you have to have a consideration amount on a grant deed when a parent transfer partial ownership in property to their child, and if so can the amount be any amount, for example will 1 cent suffice?

  • Re: grant deeds

    There must be an amount as the NJ Realty Transfer Tax is based upon the consideration paid. Since you are receiving the property as a gift presumably, you can use the amount of $10.00. You will also need to attach an affidavit of consideration, since a gift is involved, which should be available either on line or in a stationary store. If you cannot find one, or need assistance in preparing the necessary documents (Deed and Affidavit), contact me. There will be no transfer tax (unless you are assuming a mortgage) and only the recording fee will be due.

    Walter LeVine
    Walter D. LeVine, P. A.

• Notary Records Re Grant Deeds

  If a grant deed to real property has been notarized, are their any ramifications if at a later date the deed is challanged and the notary has not retained a record of the notarization?Thank you

  • Re: Notary Records Re Grant Deeds

    There are ramifications to the notary, who can lose his or her commission andpotentially be sued for malpractice.There may be effects in a lawsuit if the execution or acknowledgment of the deed isdenied by the grantor; it would be evidence that the deed may not have been properly executed or acknowledged.

    Jed Somit
    Jed Somit, Attorney at Law
    1440 Broadway - Suite 910
    
    

    Jed Somit
    Jed Somit, Attorney at Law

• interspousal grant deeds

  My husband sold his house and bought a new house while we were married and asked me to sign a interspousal grant deeds for the house. subsequently, I sold my condo (which I had before marriage) and bought a new one and asked him to sign the same form. we live in the house and my condo is rented out. As we are seperating, he believes that we have no community property, his house is his and my condo is mine (his house is five times more than my condo). we have been married for 14 years. Both work and pay for different expenses in the household. Is he right?

  • Re: interspousal grant deeds

    Your question can be responded to only after a review of the documents and the facts in your. case.

    Lyle Johnson
    Lyle W. Johnson Attorney at Law

• Two deeds one dueplex

  I really have two questions 1st how do I find out if there is two deeds to this one dueplex ? and 2nd ? if there is two deeds to this one property how do I start abandonment actions on the 2nd owner or deed to gain control over the property and my mother owns the morage and I own 1 of the deeds if there are two deeds Thank You for your time and ans.

  • Re: Two deeds one dueplex

    You would need to go the Registry of Deeds for the County where the property is located. The Registry has indexes by owner name and you can search to locate the most recent deed. You could call the Assessors Office for the city/town where the property is located and ask who is the record owner. This will help in your search to locate the correct deed showing ownership. You would need to trace the title back in time to determine the owners and their percent ownership of the property. There are no abandonment procedure to acquire title to another owner's interest (assuming multiple owners). You could contact him/her and offer to buy them out. The assessors office may have an address where the tax bills are mailed.

    Robert Trant
    Law Office of Robert R. Trant

  • Re: Two deeds one dueplex

    Retain an attorney to search the title at the Registry of Deeds and to draft the appropriate documents to accomplish your goals.ATTYJOEMURRAY@cs.com

    Joseph Murray
    Joseph M. Murray, Esq.

  • Re: Two deeds one dueplex

    Hi -Thanks for writing - I agree that examining your title is the first step. My name is Len Foy and I am an experienced real estate attorney practicing in Massachusetts & New Hampshire.Feel free to contact me at AppleTree Title & Closing, LLC (Gould & Gould), our telephone number is (603) 434-9910. We also have offices in Methuen, Mass. My email address is LenFoy@aol.com.Regards & Good Luck -Len Foy

    Len Foy
    NH Residential Title & Escrow

• Spouse addition Grant Deed

  I presently own a 50% undivided interest in a property that is my primary residence with another distant family member. I would like to include my husband on a grant deed reflective of the 50% How can I reflect the name addition and what term would be appropriate. Are there examples of more then 2 individuals anywere on deeds?

  • Re: Spouse addition Grant Deed

    There are basically 4 ways to hold joint title:1. Tenants in Common, where each person owns 50%, undivided interest (unless a different percentage is stated in the deed). There is no right of survivorship, so each person can will their share or it would be inherited according to statute.2. Joint tenancy, which provides for right of survivorship. This means if one person dies, the other automatically receives the other half of the property with no probate.3. Community property, which is like tenants in common, but is only available to married couples. This has some additional tax benefits.4. Community property, with right of survivorship.It sounds as if you want the other person to have 50% ownership as a tenant in common. You can then create a separate joint ownership for your half with your husband, based on one of the examples above. A lot will depend on what you are trying to accomplish, and whether or not you have other property in your estate.Let me know if I can help.

    Ken Koenen
    Koenen & Tokunaga, P.C.

  • Re: Spouse addition Grant Deed

    I have to assume that the property which you live on was not purchased by you in your husband with community property. The answer your question is quite simple in part by very difficult because of the nature of how people hold title. Fifty depends on the source of the funds of the acquisition, the intent of the parties during their life and at time of death and potential tax effects in the future. Generally speaking you would take your 50 percent interest and transferred to yourself in your husband as tenants in common. That will give each of you and equal 25 percent interest in the property. You can give unequal percentages in your 50 percent of the property by a transfer still in tenants in common, for example an undivided 35 percent interest in acts and an undivided 15 percent interest in Y. holding something in community property is quite different than holding something as a tendon in common and will have different effects. Additionally, if you give your 1/2 of your 50 percent interest your husband this should not have a tax effect in any manner. Transfers between husbands and wives during their lifetimes generally speaking in California as well as the federal government are tax-free. Even so, this may have a tax effect in your overall estate and estate plan. If you are concerned about any of these potential effects please see an attorney. As I said to do this is very easy yet it has numerous effects of which you may not be aware.

    Michael Olden
    Law Offices of Michael A. Olden

• Grant Deeds

  My parents (both deceased) left a living trust listing two properties...one residential and one commercial. The Grant Deed for the residential is in the name of the trust...the commercial property is their names only. What is the procedure for getting the commercial property Grant Deed into the trust name? Thank you.

  • Re: Grant Deeds

    I think the answer is that the commercial property is not part of the trust; it is part of the parents' probate estate and it cannot be put into the trust now, unless, of course, the heirs wish to do this as a part of probate, but you're stuck for now with a probate proceeding, maybe two (one for each parent). This is therefore a question for a wills, trusts and probate specialist, and I recommend that you hire someone who is local to where your parents resided at the time(s) of their deaths to investigate and handle this.

    Bryan Whipple
    Bryan R. R. Whipple, Attorney at Law

  • Re: Grant Deeds

    At this point, it may be benficial to end the trust and distribute the property into the names of the benficiaries. This is generally the procedure when the last Settlor of a trust passes away.If they did not change the name, the process of changing it would be more difficult than distributing under the terms of the trust. You may have different tax implications and obligatins depending on how this is dealt with.My best suggestion would be for you to contact our office and speak to our senior partner regarding this issue, his name is Charles Schofield.You can learn morea bout our firm on our corporate site No-Probate.com. We are specialists in this area of law and I believe we can offer you the assistance (as much or as little as needed) you need.We can be reached through our firm's site or through the contact info listed here on LawGuru.Yours Truly,Scott

    Scott Linden
    Schofield, Grossman & Linden

  • Re: Grant Deeds

    I agree with both of my colleagues. Retain a wills and trusts (i.e. probate) attorney.

    Robert L. Bennett
    Law offices of Robert L. Bennett

• quitclaim and grant deeds

  Someone quitclaimed an apartment building into a trust with herself as the trustee, on January26, 2004, and recorded the quitclaim deed on July 6, 2004.On Feb 5, 2004, this woman signed a grant deed, granting this property to a company, and signed the grant deed with her first and last name, and then a comma, and they as her sole and separate property, instead of as trustee of her trust.Is this correct?Or is the property technically still owned in the trust?

  • Re: quitclaim and grant deeds

    Without doing a thorough review of the applicable law, which I am not able or willing to do at present, I can only give you a general reading based upon a little research and a general feeling for how these things work.I think the February 2004 grant deed will stand up in court, if the buyer paid a valuable consideration and was not otherwise informed of the trust arrangement.

    Bryan Whipple
    Bryan R. R. Whipple, Attorney at Law

• Quit claim/Grant deeds?

  I own a home with a due on sale clause mortgage. I would like to sell my home to a friend I trust but, who does not qualify for a mortgage because of a dead beat x. Is it possible to transfer the property to this party through a Quit claim or Grant deed. They will pay me, I will pay the mortgage co. for a specific length of time and when this party's credit is straightened out we will get a warranty deed and a bank mortgage. If the guit claim/grant deed is recorded will my mortgage co. exercise their right under the due on sell clause?

  • Due on Sale Clause -- Fla. Sale

    If the quit claim/grant deed is recorded will my mortgage co. exercise their right under the due on sale clause?

    They could if they decide it's worth it. If the balance due is small and their risk is low, they may not. Under no circumstances would I proceed the way you have outlined! Too much risk for you! You can structure the sale to lower the possibility they will find out about the sale. Instead of the wrap-around mortgage that you propose, you may want to consider a written trust. Your unwritten "trust" is a bad idea. You will need the help of an attorney to do it.

    William W. Fernandez, Sr., J.D.
    William W. Fernandez, Attorney at Law

  • Due on sale clause

    Yes, the mortgage company could exercise its right.However, with interest rates as low as they are, itmight not make sense for them to do so. Also, aslong as they are receiving payments, most mortgagecompanies are not looking to foreclose on property.

    Randall Reder
    Randall O. Reder, P.A.