I guess its debatable, AS to what the California courts will assume was my intent?
1. Title is presumptive of ownership.
2. Community property is the presumption of ownership of property acquired during marriage.
#1 will not be overcome by the presumption of #2. #1 CAN be overcome by facts which indicate the property is community. Facts like who paid for the property, where the mortgage came from and the source of funds put into the property.
We have varying periods of time here. One is the acquisition of the property up front and two is the changes in ownership after that point based on mortgage paydown and capital improvements.
At acquisition, I suspect you signed something, even though you are not on title or the mortgage. You signed a quitclaim, a letter to the bank indicating you had no right to the money used as the down payment, something. The reason is that there could be a problem in enforcing a deed of trust against a property that was purchased by two owners where only one obtained the underlying loan. If there is something here showing your written intent, you are done.
If not, the main case (Look at the cite and track cases nearer to your facts--it requires lots of reading.) would be the Estate of MacDonald, 51 Cal.3d 262, to determine if there were a transmutation. A deed alone would not do it, it takes more.
Civil Code section 5110.730, subdivision (a) (section 5110.730 (a)) provides: "A transmutation of real or personal property is not valid unless made in writing by an express declaration that is made, joined in, consented to, or accepted by the spouse whose interest in the property is adversely affected."
In this case we are asked to decide what type of writing is necessary to satisfy the statute's requirements. In our view, section 5110.730 (a) must be construed to preclude reference to extrinsic evidence in the proof of transmutations. Accordingly, we conclude a writing is not an "express declaration" for the purposes of section 5110.730 (a) unless it contains language which expressly states that a change in the characterization or ownership of the property is being made. thus, we affirm the judgment of the Court of Appeal.
saying:
It thus appears from an examination of the Commission report that section 5110.730 (a) was intended to remedy problems which arose when courts found transmutations on the basis of evidence the Legislature considered unreliable. To remedy these problems the Legislature decided that proof of transmutation should henceforth be in writing, and therefore enacted the writing requirement of section 5110.730 (a).
First the good news:
In our view, the Legislature cannot have intended that any signed writing whatsoever by the adversely affected spouse would suffice to meet the requirements of section 5110.730 (a). First, to so construe that statute would render mere surplusage all the language following the words "unless made [51 Cal.3d 270] in writing," including the phrase "an express declaration." A construction rendering some words surplusage is to be avoided. (People v. Black (1982) 32 Cal.3d 1, 5 [184 Cal.Rptr. 454, 648 P.2d 104]; Watkins v. Real Estate Commissioner (1960) 182 Cal.App.2d 397, 400 [6 Cal.Rptr. 191].) Second, as respondent acknowledges, some of the "easy transmutation" cases which section 5110.730 was intended to overturn involved nonoral conduct or signed writings.fn. 6 Therefore, it seems reasonable to assume that the Legislature intended section 5110.730 (a) to invalidate some claimed transmutations even though some form of writing existed.
Now the bad (Keep in mind the case was over a transmutation from separate to community, the reverse of ours.):
Thus, just as section 5110.730 (a) requires an "express declaration" for a valid transmutation, section 683 requires that the creation of a joint tenancy be "expressly declared." Unlike section 5110.730 (a), however, section 683 explains what the express declaration it calls for must include. Specifically, section 683 requires that an express declaration creating a joint tenancy [51 Cal.3d 272] must, "in the transfer," declare the interest being transferred "to be a joint tenancy." (Civ. Code, § 683, subd. (a).) Section 683 thus ensures that a court need not look beyond the face of a proffered writing to determine whether its writer intended to create a joint tenancy. (Bennett, supra, 33 Cal.2d at p. 699.)
Following the approach elucidated in Bennett, we conclude that a writing signed by the adversely affected spouse is not an "express declaration" for the purposes of section 5110.730 (a) unless it contains language which expressly states that the characterization or ownership of the property is being changed.
And, the worse:
[2c] We do not hold that section 5110.730 (a) requires use of the term "transmutation" or any other particular locution. Although a writing sufficient to satisfy the "express declaration" requirement of section 5110.730 (a) might very well contain the words "transmutation," "community property," or "separate property," it need not. For example, the paragraph signed by decedent here would have been sufficient if it had included an additional sentence reading: "I give to the account holder any interest I have in the funds deposited in this account."fn. 9
How was title held? What does the deed say?
