Quitclaim Deed ... a bit complicated

[TheresaH]

State of Washington ...

Trying to refinance my home. My husband and I are approved by the lender but there is a problem with the deed. When I bought the home in 1990 I was married to Dan. Dan and I were divorced in 1994. The divorce clearly gives me the house and its furnishing. I was remarried to John in 1994. Dan died in 2002. Dan and I are named on the deed. I want to remove Dan's name and add my husband, John, along with me, as joint tenants. I've been told that a Quitclaim Deed is the best instrument to use but I am unsure of what to put in the Grantor and Grantee sections. Thanks, in advance, for your advice.

 

[Zigner]

You're going to want to speak to an attorney about this. Really. An internet forum is not the place for you. Really.

 

[FlyingRon]

There's no way a "quitclaim" deed is going to work. In order for a quitclaim deed to actually convey something, the person who presumably has an ownership interest must sign it. That might have worked if you could have prevailed on Dan when he was alive. It can't possibly work now.

The first question is how the previous deed reads? If you had joint tenancy with right of survivorship, then you likely own the house outright now. All you need do is contact the court house and see what they want (death certificate, affidavit, or the like) to show that Dan is dead and you are the sole owner.

If was not held in such a joint tenancy, then you have a big problem here. You're likely going to have to make a claim against Dan's estate. This will certainly, as Zig said, need an attorney.

 

[TheresaH]

I approached the various county departments with a Quitclaim Deed, a copy of Dan's death certificate and a copy of the divorce decree, which gave me sole ownership of the real estate and household contents, and had no trouble getting the deed recorded with the grantees being my husband, John, and I as joint tenants with right of survivorship.

 

[FlyingRon]

I approached the various county departments with a Quitclaim Deed, a copy of Dan's death certificate and a copy of the divorce decree, which gave me sole ownership of the real estate and household contents, and had no trouble getting the deed recorded with the grantees being my husband, John, and I as joint tenants with right of survivorship.

I would suggest you have a lawyer or title search company look at it. You can RECORD any deed you want. I could quit claim the Empire State Buliding to you if I wanted. It means nothing if the grantor doesn't have any interest in the property.

A divorce order isn't going to allow you to forge a deed. There's no way property can be conveyed by a deed without a grantor signing it away.

 

[NIV]

I would suggest you have a lawyer or title search company look at it. You can RECORD any deed you want. I could quit claim the Empire State Buliding to you if I wanted. It means nothing if the grantor doesn't have any interest in the property.

A divorce order isn't going to allow you to forge a deed. There's no way property can be conveyed by a deed without a grantor signing it away.

I almost completely agree. The disagreement would add the other way to transfer is by court order. This is usually done by a judge in a quiet title trial. I don't believe the court has jurisdiction over the property in a divorce, but over the people. They can force one to sign under penalty of contempt. If the contempt power no longer applies because of death of a party, a trial with the court having jurisdiction over the property is needed for the transfer. There is still a deed involved, however.

 

[latigo]

I almost completely agree. The disagreement would add the other way to transfer is by court order. This is usually done by a judge in a quiet title trial. I don't believe the court has jurisdiction over the property in a divorce, but over the people. They can force one to sign under penalty of contempt. If the contempt power no longer applies because of death of a party, a trial with the court having jurisdiction over the property is needed for the transfer. There is still a deed involved, however.

Well, make up your mind for heavens sake!

First its "the other way to transfer is by court order which is usually done by a judge in a quiet title trial".

Then its "I don't believe that the divorce court has jurisdiction over the marital property."

Then were shuttled back to "a trial with the court having jurisdiction over the property is needed for the transfer."

With all the respect due and owing you where the devil did you study law, "Whatsamatta U" or among the mud people at "Elbonia State"?! The only value you've added to the thread is a bit of amusement.

 

[FlyingRon]

QUIET TITLE is a different thing that QUIT CLAIM.

If you have an order from a QUIET TITLE, that order changes the ownership. That has squat to do with any quit claims (in fact it SUPERCEDES any prior deeds).

 

[NIV]

Well, make up your mind for heavens sake!

First its "the other way to transfer is by court order which is usually done by a judge in a quiet title trial".

Then its "I don't believe that the divorce court has jurisdiction over the marital property."

Then were shuttled back to "a trial with the court having jurisdiction over the property is needed for the transfer."

With all the respect due and owing you where the devil did you study law, "Whatsamatta U" or among the mud people at "Elbonia State"?! The only value you've added to the thread is a bit of amusement.

Are you the general troll for the forum? Or, do you save such antiquated rapier wit for those with low post counts? Seriously, I think my dad watched Bullwinkle.

For serious questions to the comedian:

Can or will the divorce court give a court order to change the deed to reflect the fact they ordered the property to TeresaH?

What would TeresaH's next step be to "quiet" this title and remove the deceased ex's name?

If TeresaH then filed such a suit, could THAT court give a court order to change the deed to reflect the previous court's order?

Why is there a difference between what the first court will order and the later court?

Most courts enforce their orders through contempt. It can penalize the person(s) who fail to do what the court orders; like signing a quit claim deed. Some states don't even allow or judges don't enforce property division through contempt. Neither is relevant here because the ex is dead.

Here, TheresaH will find relief at:

7.28.010
Who may maintain actions—Service on nonresident defendant.

Any person having a valid subsisting interest in real property, and a right to the possession thereof, may recover the same by action in the superior court of the proper county, to be brought against the tenant in possession; if there is no such tenant, then against the person claiming the title or some interest therein, and may have judgment in such action quieting or removing a cloud from plaintiff's title; an action to quiet title may be brought by the known heirs of any deceased person, or of any person presumed in law to be deceased, or by the successors in interest of such known heirs against the unknown heirs of such deceased person or against such person presumed to be deceased and his or her unknown heirs, and if it shall be made to appear in such action that the plaintiffs are heirs of the deceased person, or the person presumed in law to be deceased, or the successors in interest of such heirs, and have been in possession of the real property involved in such action for ten years preceding the time of the commencement of such action, and that during said time no person other than the plaintiff in the action or his or her grantors has claimed or asserted any right or title or interest in said property, the court may adjudge and decree the plaintiff or plaintiffs in such action to be the owners of such real property, free from all claims of any unknown heirs of such deceased person, or person presumed in law to be deceased; and an action to quiet title may be maintained by any person in the actual possession of real property against the unknown heirs of a person known to be dead, or against any person where it is not known whether such person is dead or not, and against the unknown heirs of such person, and if it shall thereafter transpire that such person was at the time of commencing such action dead the judgment or decree in such action shall be as binding and conclusive on the heirs of such person as though they had been known and named; and in all actions, under this section, to quiet or remove a cloud from the title to real property, if the defendant be absent or a nonresident of this state, or cannot, after due diligence, be found within the state, or conceals himself or herself to avoid the service of summons, service may be made upon such defendant by publication of summons as provided by law; and the court may appoint a trustee for such absent or nonresident defendant, to make or cancel any deed or conveyance of whatsoever nature, or do any other act to carry into effect the judgment or the decree of the court.

That is, unless you feel the divorce court has jurisdiction to order the property transferred from a deceased former litigant. Do they?

RCW 26.09.080
Disposition of property and liabilities—Factors.
In a proceeding for dissolution of the marriage or domestic partnership, legal separation, declaration of invalidity, or in a proceeding for disposition of property following dissolution of the marriage or the domestic partnership by a court which lacked personal jurisdiction over the absent spouse or absent domestic partner or lacked jurisdiction to dispose of the property, the court shall, without regard to misconduct, make such disposition of the property and the liabilities of the parties, either community or separate, as shall appear just and equitable after considering all relevant factors including, but not limited to:
(1) The nature and extent of the community property;
(2) The nature and extent of the separate property;
(3) The duration of the marriage or domestic partnership; and
(4) The economic circumstances of each spouse or domestic partner at the time the division of property is to become effective, including the desirability of awarding the family home or the right to live therein for reasonable periods to a spouse or domestic partner with whom the children reside the majority of the time.

 

[FlyingRon]

A court can change the title. But that doesn't mean you can just file a quit claim and have it mean anything. The poster has generated a piece of paper that is either meaningless or fraudulent.

 

[NIV]

A court can change the title. But that doesn't mean you can just file a quit claim and have it mean anything. The poster has generated a piece of paper that is either meaningless or fraudulent.

I think everyone who has written agrees some court can change title. That was the point of my original posting.

The real question is, when you write "A court", does that include the court that gave TheresaH her divorce?

Would the fact she has discovered she never transferred the property previously be something like newly discovered evidence enough to motion to reopen the case?

 

[FlyingRon]

Divorce courts rarely do this. The problem is that sufficient other information for the quiet title action isn't typically presented in a divorce, just the statement to justify whatever equity is in it.
The poster keeps mentioning quit claim deeds. There is no way that a quit claim deed (no matter WHAT the court says in any circumstances) has any validity here.

Just because the divorce/property settlement says the wife gets the house, doesn't convey it. Go back and what I read in the first response. Since that didn't happen while the person was alive, then she needs to go to the estate (a probate action could convey it to her). If that doesn't work, then the quiet title action is the only response.

Again, just because you record a quit claim deed means squat. I could walk into the OCR in NY and record a quit claim deed to you for the Empire State Building. It would mean nothing as I have no interest in that building to convey. A deed can only grant interest that the grantor actually has. So she either has a useless quit claim because she grants stuff to herself she didn't already have or she fraudulently represented she was her ex-husband in the conveyance.

 

[NIV]

Divorce courts rarely do this. The problem is that sufficient other information for the quiet title action isn't typically presented in a divorce, just the statement to justify whatever equity is in it.
The poster keeps mentioning quit claim deeds. There is no way that a quit claim deed (no matter WHAT the court says in any circumstances) has any validity here.

It might depend on how you mean. First, who will claim differently? In the real world, if no one challenges, what will happen to the transfer attempt by deed? Second, in the facts of a later appeal, the appellate court mentions an unsigned by the grantor-ex deed. Hovick, 2012 WL 5382954 (2012) as reported in an unpublished case at https://casetext.com/case/hovick-v-page-2 (2015).

One spouse is awarded the property with language that requires the other party to assist in the transfer. Without getting anything signed from the former spouse, the property-awarded spouse sells the property by using a warranty deed. The holding:

Finally, Page's claim that the superior court lacked jurisdiction over the Island County property is based on reasoning we rejected in our 2012 decision. Page contends the superior court lacked jurisdiction over the property and could not quiet title to it because the disposition of the property was controlled by the parties' agreed property division. Because boilerplate language at the end of that agreement required the parties to "execute whatever documents are necessary to carry out the transfers and distributions order[ed] herein," he claims his ex-wife could not sell property awarded to her and the Hovicks could not acquire valid title until he executed a document transferring his interest in the property to his ex-wife. But we rejected this reasoning in our 2012 decision, stating in part that "the 1999 decree awarded the . . . property to his ex-wife" and that the award "effectively divested Page of his interest" in it. Thus, no further documents were necessary to carry out the transfer of Page's interest in the property.

If the quit claim entered here is relied upon by the bank to make the loan, will they have any security against the property for the part of the property awarded in the property settlement? It would depend on the original order and if it actually transferred the property.

Just because the divorce/property settlement says the wife gets the house, doesn't convey it. Go back and what I read in the first response. Since that didn't happen while the person was alive, then she needs to go to the estate (a probate action could convey it to her). If that doesn't work, then the quiet title action is the only response.

That is a good idea. It would be cheaper to go to the estate as a creditor if it is not settled rather than prosecuting a new action.

Again, just because you record a quit claim deed means squat. I could walk into the OCR in NY and record a quit claim deed to you for the Empire State Building. It would mean nothing as I have no interest in that building to convey. A deed can only grant interest that the grantor actually has. So she either has a useless quit claim because she grants stuff to herself she didn't already have or she fraudulently represented she was her ex-husband in the conveyance.

I don't think it useful to continue down this path for a number of reasons. One is that there is no fraud here if the court actually awarded her title to the property. Even then, the fraud would not be in the filing of the deed as no one has been hurt, but in the representation to the person making the loan. The deed might be perjury if she signed it as her ex and it could be a part of scheme to defraud the lender by reducing the value of its security. Another is directly related to your quit claim discussion; if a quit claim transfers all that one owns and a party is on a deed for 1/2 of the property and has a court order for the other 1/2 of the property and they issue a quit claim to another, who owns the property?

 

[FlyingRon]

It might depend on how you mean. First, who will claim differently? In the real world, if no one challenges, what will happen to the transfer attempt by deed? Second, in the facts of a later appeal, the appellate court mentions an unsigned by the grantor-ex deed. Hovick, 2012 WL 5382954 (2012) as reported in an unpublished case at https://casetext.com/case/hovick-v-page-2 (2015).

You're talking nonsense. Again, if the poster was the grantor, the grant is meaningless as it can't convey interest it doesn't have.
The other option is the ex as grantor, which wouldn't even be an UNSIGNED deed as the grantor is DEAD and can't even implicitly convey anything.
Your court case has ABSOLUTELY no merit. First off, unpublished cases aren't precedent for anything. Second, the case has nothing whatsoever to do with things.

Furhter, whether anybody CONTESTS it now means nothing. You can pretty much record whatever the hell you want (as I stated). That doesn't make it legitimate if it wasn't at the time. Where this generally comes and bites people is when they later try to convey the property to someone else (or get a loan) and a proper title search shows the recorded grants aren't actually conveying anyting.

If the quit claim entered here is relied upon by the bank to make the loan, will they have any security against the property for the part of the property awarded in the property settlement? It would depend on the original order and if it actually transferred the property.

More nonsenses. WHether a bank is foolish to make a loan on clouded title doesn't mean anything either.

I don't think it useful to continue down this path for a number of reasons. One is that there is no fraud here if the court actually awarded her title to the property.

Don't be rediculous. It is FORGERY to sign her ex's name as the grantor. It is fraud if she attempts to use that document to get any pecuniary gain.
It doesn't matter that she might otherwise legitimately be entitled to the property. She has to convey it in a legal method rather than forging documents.

Even then, the fraud would not be in the filing of the deed as no one has been hurt, but in the representation to the person making the loan. The deed might be perjury if she signed it as her ex and it could be a part of scheme to defraud the lender by reducing the value of its security. Another is directly related to your quit claim discussion; if a quit claim transfers all that one owns and a party is on a deed for 1/2 of the property and has a court order for the other 1/2 of the property and they issue a quit claim to another, who owns the property?

She doesn't need a quit claim to convey property she already has title to. That's a complete no-op. She's trying to get the other half fo the property.
FOR THE TENTH TIME: TEHRE IS NO WAY TO HER TO USE A QUIT CLAIM TO DO THIS. She is not the ex. She is not the ex's estate. All she has is a divorce order which does NOT convey the property. It just orders the ex to do so. If she can't get the estate to do so, she will need a separate quiet title action.

 

[NIV]

You're talking nonsense. Again, if the poster was the grantor, the grant is meaningless as it can't convey interest it doesn't have.
The other option is the ex as grantor, which wouldn't even be an UNSIGNED deed as the grantor is DEAD and can't even implicitly convey anything.
Your court case has ABSOLUTELY no merit. First off, unpublished cases aren't precedent for anything. Second, the case has nothing whatsoever to do with things.

Furhter, whether anybody CONTESTS it now means nothing. You can pretty much record whatever the hell you want (as I stated). That doesn't make it legitimate if it wasn't at the time. Where this generally comes and bites people is when they later try to convey the property to someone else (or get a loan) and a proper title search shows the recorded grants aren't actually conveying anyting.


More nonsenses. WHether a bank is foolish to make a loan on clouded title doesn't mean anything either.

Don't be rediculous. It is FORGERY to sign her ex's name as the grantor. It is fraud if she attempts to use that document to get any pecuniary gain.
It doesn't matter that she might otherwise legitimately be entitled to the property. She has to convey it in a legal method rather than forging documents.

She doesn't need a quit claim to convey property she already has title to. That's a complete no-op. She's trying to get the other half fo the property.
FOR THE TENTH TIME: TEHRE IS NO WAY TO HER TO USE A QUIT CLAIM TO DO THIS. She is not the ex. She is not the ex's estate. All she has is a divorce order which does NOT convey the property. It just orders the ex to do so. If she can't get the estate to do so, she will need a separate quiet title action.

That is an extraordinarily odd interpretation of what I wrote. I don't think we are talking about the same legal issues in the same specificity at all. Since I just started in this discussion to pick a minor nit, I'll leave.