Posted by CaliNotary on 9/13/09 11:35am
Msg #303727

What is this Quitclaim Deed trying to accomplish?

This one stumped me at a signing yesterday, and the borrowers refused to sign it since they had no plans to change anything about the title to the property. Also, they hold title as joint tenants, which was how it was shown on the DOT. Am I missing something, or is this just done in a way that makes absolutely no sense?:



Made this _______ day of _________________, ____________, by and between John Doe, Married To, Jane Doe, Grantor, and John Doe, a married person, Jane Doe, a married person, HUSBAND AND WIFE, TENANTS BY THE ENTIRETY WITH RIGHTS OF SURVIVORSHIP whose post office address is XXXXX, LOS ANGELES, CA 90018, Grantee;

Witnesseth, that said Grantor, for in consideration of the sum of TEN ($10.00) DOLLARS, and other good and valuable considerations in hand paid by Grantee, the receipt whereof is hereby acknowledged, does hereby remise, release and quitclaim unto the said Grantee forever, all the right, title, interest, claim and demand which the said Grantor has in and to the following described lot, piece or parcel of land, situate, lying and being in LOS ANGELES County, California, to-wit:

“SEE COMPLETE LEGAL ATTACHED AS
EXHIBIT “A” INCLUDED HEREWITH AND
MADE A PART HEREOF”

To have and to hold the same together with all and singular the appurtenances thereunto belonging or in anywise appertaining, and all the estate, right, title, interest, lien, equity and claim whatsoever of the said Grantor, either in law or in equity, to the only proper use, benefit and behalf of the said Grantee forever.
In witness whereof, Grantor has hereunto set a hand and seal the day and year first written above

Reply by Lee/AR on 9/13/09 11:46am
Msg #303728

I dunno, but don't think I'd sign it either. Googling produced this, but I'm not enlightened. http://www.answers.com/topic/tenancy-by-the-entirety-2

Reply by Shoshana/AZ on 9/13/09 12:20pm
Msg #303730

By the definition, TBE sounds like each of the property owners is protected from the other selling his interest.
I had a signing several months ago where the woman told me she had to refi to pay off her late husband's children. Apparently, he somehow deeded his half interest to them without telling her. When she tried to refi, she was told by title that she now owned only half the property.

Reply by John_NorCal on 9/13/09 12:50pm
Msg #303733

This makes no sense at all, I wouldn't have signed it either. Was this drawn by a Calif based title company? I never seen anything like it. It looks to me like someone wants Jane Doe to QC to John Doe. But the wording isn't correct, John and Jand should be reversed as in Jane Doe quit claims all rights and title to John Doe.
Without their consent to do that it appears that someone is stepping into some m_____da.

Reply by NCLisa on 9/13/09 1:07pm
Msg #303734

The TC doesn't know the difference between a community property state and an entireties state.

Reply by MW/VA on 9/13/09 1:43pm
Msg #303735

I've seen this a couple of times where the original Deed did not contain the language "Tenants by the Entirety with Rights of Survivorship". Apparently that is not automatic with joint tenancy, even though most people assume it is.

Reply by LKT/CA on 9/13/09 3:41pm
Msg #303747

<<<Apparently that is not automatic with joint tenancy, even though most people assume it is. >>>

Joint tenancy has an implied right of survivorship - if it is not stated. If title is taken by husband and wife as community property, right of survivorship is not implied, it MUST be stated.

Reply by NCLisa on 9/13/09 4:22pm
Msg #303748

It depends on what state you are in, for what the implications are. CA is a community property state, and not an entireties state, therefore entireties should not be used on vesting there, period! A deed with the incorrect tenancy on it, can cause all kinds of problems for heirs. I know I remember my real estate from my years doing it in CA, I remember CA not allowing teants by entireties.

Reply by Stamper_WI on 9/13/09 2:19pm
Msg #303737

The man owned the property before marriage. My understanding of community property laws, which are in effect in CA, is that the community property is property value obtained during the marriage. The house had some value before the marriage which is the husbands. By doing this, he is deeding that pre existing value. They both own the house now as sort of a business type arrangement instead of half each. I suppose there are economice benifits for this in estate planning etc.
At least thats my take on it. But then I am not an attorney. We get those typse of QCD's here too even though this is a marital law state. Each spouse owns half and inherits it all upon the death of the opther spouse. My take is that they are tidying up the title after the fact if the new spouse is not mentioned on it.

Reply by Kevin/Ct on 9/13/09 2:21pm
Msg #303738

This is an interesting question. The deed at issue identifies the husband and wife as tennants by the entirety...not joint tennants. There is a difference. It would appear that the deed might convert the tennancy by the entirety to a tennancy in common since there is no indication of a right to survivorship in the words that grant title.

The husband and wife were quite right to question it since it may impact to the future disposition of title in the event of one of theirs death

Reply by MW/VA on 9/13/09 2:29pm
Msg #303739

The key wording in the document seems to be the last paragraph. I'm not an attorney, and truly cannot understand what it says.

Reply by Pat/IL on 9/13/09 2:54pm
Msg #303742

This would make sense to me if the husband currently held title solely to the property, because he is the sole grantor on the deed. To properly change the title vesting to Tenancy By The Entirety, all parties currently in ownership would need to convey. So, if the wife is currently a joint tenant, she would need to appear as a grantor also.

Tenancy By The Entirety does feature a right of survivorship, so I doubt that's the issue. If I were the borrowers and I saw that document, I would question our current title holding. Over the past several years, there have been so many quit claims filled in conjunction with refinance closings, maybe they messed with the title at some point and forgot about it.

Keep in mind, I am not familiar with the workings of community property states. But I do think the key is in the grantor/grantee statement of the quit claim deed.

Reply by MW/VA on 9/13/09 3:06pm
Msg #303743

I'm glad this isn't a test question--I'd fail. If I read this slowly, it appears that vesting is changing from his name only to both their names. This is usually a good idea, community property state or not.

Reply by SueW/Tn on 9/13/09 3:30pm
Msg #303746

With Kevin being an attorney I'm voting for his answer n/m

Reply by Susan Fischer on 9/13/09 6:23pm
Msg #303764

Dittos. Nice to see you again, Kevin. n/m

Reply by Pat/IL on 9/14/09 12:33am
Msg #303784

Gosh, Sue, I wouldn'ta thunk.

So many times I have read your opinions based upon the facts as you know them, rather than the poster of previous opinions.

The facts in this case, as far as I know, would suggest that there were several better answers posted in this thread than Kevin's answer. First and foremost, that Tenancy By The Entirety is not recognized in the State of California in the first place. Also, while the 'right of survivorship' language may be a requirement in Connecticut (or not, I don't know), it is not common in other states. As two respondents in this thread, including myself have pointed out, the right of survivorship is implied and given in a Tenancy By The Entirety.

I am only saying this because I so often see agreement on this board in accordance with the poster, rather than seeing people verifying information independently. That should not be the case, and now I am watching independent Sue make determinations based upon the supplier of information. That is unfortunate.

I have a ton of respect for Kevin Ahern. i am quite aware of his credentials. I don't think he got it right in this case. I don't even think I got it right in this case, as it doesn't appear that Tenancy in the Entirety is even recognized in California. My point is, you have to verify idependenntly any information you read, here or anywhere else.

I understand also that this was just an interesting situation brought up by Cali. But it's a good opportunity to bring up my point.

Reply by Kevin/Ct on 9/14/09 9:05am
Msg #303792

Re: Gosh, Sue, I wouldn'ta thunk.

Pat, the problem I perceive is with the words of grant contained in the deed. The first paragraph appears to identify the parties to the transaction. Unless I am missing something it identitifies both the husband and wife as tennants by the entirety. In a deed this paragraph normally indicates the status in which title to the subject property is currently held by the grantors.

Normally the words of grant contained in a deed create the type of tennancy by which the grantees will hold title in the future. This could be joint tenancy with right of survivorship, tennancy by the entirety or tennancy in common without right of survivorship. I don't seem to see any languague in the last paragraph that identifies or creates the new tennancy

Reply by NCLisa on 9/14/09 12:06pm
Msg #303809

Re: Gosh, Sue, I wouldn'ta thunk.

Yes, but CA is a community property state, not an entireties state. So holding title as tenants by entireties is completely unacceptable for a CA property. They can hold it as community property, community property with right or survivorship, joint tentants, or tenants in common.

Reply by Pat/IL on 9/15/09 9:41am
Msg #303906

Re: Gosh, Sue, I wouldn'ta thunk.

Kevin,

Your response caused me to take a better look a the quit claim forms commonly used in Illinois. It is very similar to the one in the example, with the tenancy stated in the granting clause. Except, in the example here, there seems to be some wording omitted. However, in the Illinois form, there is nowhere in the habendum clause (which I believe is the paragraph you are referring to) to add the tenancy, unless it is typed in after the paragraph.

I found a case in Bert Rush's First American Title column "Claims Chronicles" which seems to suggest that an east coast court would agree with you. Rush and First American don't seem to agree with the east coast courts. For anybody interested, here is a link:

http://firstam.com/landsakes/html/email/101999jointen.html

Reply by SueW/Tn on 9/14/09 10:09am
Msg #303799

Re: Gosh, Sue, I wouldn'ta thunk.

I am an independent Pat, thanks for pointing that out here. I make those political decisions based on what I see, who I speak with and what my own personal choices are. This, however, is far removed from "opinion" and I will always defer to those that have a legal degree (particularly Kevin whom I've been reading for years).

Furthermore I don't think it's my place as an NSA to get a headache trying to figure out what means what in legal docs, that's the job of those who's pay grade is far beyond mine. In this case I'm not even the slightest bit curious, I would have made the phone call and moved on.

Reply by BobbiCT on 9/13/09 5:03pm
Msg #303754

Reads like change title from sole to joint ..

"by and between John Doe, Married To, Jane Doe, GRANTOR,
and John Doe, a married person, Jane Doe, a married person"

When you cut out all the legalese it reads as tho John Doe holds title in his sole name.
The deed is conveying FROM John (who is identified as being married to Jane) as Grantor
TO John Doe AND Jane Doe (who are both identified as being married, hopefully to each other) as Grantee.

I've seen these funky worded deeds before. It does read like some California title company employee smoking a substance not allowed in CT filled in a form. My guess is because the lender wanted the property owned by both husband and wife rather than just husband ... usual legal lending stuff.

Kevin, I think CA attorneys charge by the word .... and haven't learned how to use a semicolon yet I've seen many Florida deeds written this same by " By and between .... and" rather than the simple John Doe TO himself, John Doe, and Jane Doe, his wife.

Reply by CaliNotary on 9/13/09 9:17pm
Msg #303771

Re: Reads like change title from sole to joint ..

Thanks for the input all, I'm glad to know that it wasn't just me who was confused.

According to the borrowers, the title is currently held as joint tenants, and will continue to be that way after this loan goes through. So there is no adding the wife, she's already on it. And even if that were the case, the vesting on the DOT would have to match what's on the Grant Deed, which it doesn't.

So I'm gonna just go with the title company employee smoking a substance theory

Reply by Stamper_WI on 9/14/09 7:11am
Msg #303787

Re: Reads like change title from sole to joint ..

It could just be an attorney from another state applying what is acceptable in his. "Opinion". How many times have you talked to an out of state attorney doing that when backdating is requested or saying that you can apply your seal to a doc with only your signiture?

Reply by OR on 9/14/09 1:51pm
Msg #303831

Re: Reads like change title from sole to joint ..

"So I'm gonna just go with the title company employee smoking a substance theory" LOL.

Or you could just go with the title company employee smoking a substance and ask what the H**L it is trying to say. If you do that please post what they tell you. tks

Reply by CaliNotary on 9/14/09 10:48pm
Msg #303880

Re: Reads like change title from sole to joint ..

Oh yeah, I got a response. There was also an issue with them being told the wrong amount needed to close. They were given one figure, got the cashier's check, then were called with a lower figure and told they'd receive about $60 refunded. The amount shown on the settlement statement was $40 higher than the cashier's check:

"The deed was needed to update the vesting from just XXX to both of them and the reason for the increased short to close amount is because of the deed prep fees and recording fees. If the borrower has issues with either, they would need to take it up with BofA because the documents were sent with both XXX and XXX vested on the docs therefore the deed is necessary. Please have the notary collect both and overnight them to us, the notary should cover the fee because when a deed is sent, there’s usually a reason for it and it should come back with the docs. If they have any issues with this, please have them give me a call. Thanks!"


Then my response:

"Well I know it’s sent for a reason, but if they refuse to sign it, and it’s a weekend where I can’t get any answers about the deed, there’s really nothing I can do about it, especially when I can’t even explain to them what the purpose of the document is. I can’t force somebody to sign something they’re not willing to sign, so at that point my only options were to have everything else signed and returned, or to abort the signing completely.

I asked if they were making any changes to the title, and he said no, that it was the both of them as joint tenants and that’s the way it was staying. If that’s not accurate, I would have no way of knowing, I can only go by what they tell me. You may want to double check if that deed is even acceptable in CA, because every grant deed or quit claim deed I’ve ever seen matches the wording on the DOT, either as the grantor or the grantee. This DOT is vested as joint tenants, but those words don’t appear anywhere on the quit claim deed, which shows tenants by the entirety, with rights of survivorship. You guys don’t even have that listed as an option on the vesting instructions in the title docs, and I’ve never seen it in over 6 years of doing loan signings. Is it possible that’s something that another state uses but California doesn’t? Because I’m pretty sure that here you can’t have the vesting shown one way on a quitclaim deed, then change it to a different way on the Deed of Trust.

As for the fees, it’s the same situation, if they’re not willing to give me the additional funds until they can get an answer from their loan rep, what can I do? If it’s a large amount I can often figure out what it might be by looking at the settlement statement, but if it’s $40 it could be pretty much anything that changed, and without having seen earlier figures all I can give them is a wild guess. And unsurprisingly, the borrowers are usually more inclined to believe the person they’ve been working with for several months over the person who just showed up at their door and can only give them an “I don’t know” as an answer about the difference in fees. If anyone should cover the cost of having that sent, it should be the loan agent who gave them 2 different figures, but never bothered to call them with the third, correct figure.

I do the best I can when I’m out there, but I can only do so much; I can’t force people to do something they don’t want to do, especially when I don’t have the answers for them as to why it needs to be done, and we can’t get a hold of somebody else to give them those answers. The past few months have been even trickier to finesse, because often these borrowers are highly frustrated at the amount of time and effort on their part it’s taken for the loan to close. I can’t tell you how many times I’ve been told that they were ready to give up and just tell the bank to forget about it. So when I show up with even more issues, that doesn’t help their confidence in the process. Between that and all the horror stories they’ve been hearing on the news over the past couple of years, borrowers are MUCH more cautious and MUCH less willing to just sign now and get the answers later, ESPECIALLY when it comes to a document changing the title of the property. Sometimes my hands are just tied, and this was one of those situations. A blanket statement that it’s the notary’s job to get everything signed and returned, period, just isn’t realistic, because sometimes we just can’t do it when somebody else hasn’t done their job properly. And this is one of those situations, the borrowers should have gotten the right figure for closing costs, and they CERTAINLY should have been made aware that they were going to have to sign a quitclaim deed to change the title of the property."

Then their response:

"no worries they will now take care of it on our end. Thanks for explaining it all out in detail… "

Reply by JanetK_CA on 9/15/09 2:42am
Msg #303893

Bravo, CaliNotary!

Especially this part:

"Between that and all the horror stories they’ve been hearing on the news over the past couple of years, borrowers are MUCH more cautious and MUCH less willing to just sign now and get the answers later, ESPECIALLY when it comes to a document changing the title of the property. Sometimes my hands are just tied, and this was one of those situations. A blanket statement that it’s the notary’s job to get everything signed and returned, period, just isn’t realistic, because sometimes we just can’t do it when somebody else hasn’t done their job properly."

I couldn't agree more! Interestingly, though, I've had a few situations where it seemed like the borrowers ended up trusting me more than the lender, as they either kept having to deal with different people, or couldn't get their calls returned, etc. At least I was there face-to-face with them. And it seems like there have been a lot of situations where "reviewing" the Settlement Statement in some detail was required before they were comfortable with the content. It amazes me how many errors I'm seeing in packages these days. Feels like I'm seeing more wrong than right.

Reply by JanetK_CA on 9/14/09 3:11pm
Msg #303840

I'm not an attorney or even close to being an expert on holding title, but I have notarized quite a few QC or Grant Deeds in my day. I have never seen anything close to this. And I don't think I've ever seen a reference to "entirety" in the vesting. Also, every QC Deed I've ever seen clearly - and separately - defines who is/are the Grantor(s) and who is/are the Grantee(s), including the vesting in each case. It's all mushed together here.

If it's unclear to this group what they're trying to accomplish, how in the world would a member of the general public have any idea? I'd hate to have to to show this to a borrower -- and I'd be surprised if this would even record here in CA!

Reply by SharonMN on 9/14/09 3:24pm
Msg #303844

This is a great example of why lenders and title companies should not be allowed to draft deeds on refinances, or at least why the deed should be required to be signed at a separate time PRIOR to the closing of the loan. If you can't lend based on the way title is deeded, ask the borrower to change the title and THEN reapply.

Way too many borrowers are signing docs that affect the title to their property as part of a big fat stack of loan documents when they have NO idea what's going on. I'm particularly annoyed when the deed just appears in the package and no one seems to have consulted with the borrowers at all.