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AttyHeather
AttyHeather, Lawyer
Category: Real Estate Law
Satisfied Customers: 547
Experience:  Attorney with 15 years experience
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Its a confusing case..I was divorced 5 years ago, my ex got

Customer Question

Its a confusing case..I was divorced 5 years ago, my ex got the house. Deed was in his name and mortgage in both our names. Two years later he can't pay the mortgage anymore so he says I can have the house. I move back to my house and find out he hasn't made several payments so it is moving into foreclosure, I get a loan mod to keep the house, he quitclaims me the title and asks me to get a refi to remove his name. Four months later we find out that the deed isn't valid due to a wrong property description. I can't get a refi due to low income. Now my ex is trying to get me to pay him extra every month to stay in the house and to sign a rental agreement. I went to the courthouse one month ago and found out the deed is truly only in my name!! I haven't told my ex yet as I am trying to get a new loan and get his name off before he finds out about the deed. The loan takes about 45 days and I am wondering what can he do about any of this if he did find out that the deed is in my name? Facts are he was given the house in divorce, he walked away from house (no new contract or decree was made), deed is in my name, mortgage is in both our names.
JA: Since laws vary from place to place, what state is this in? And has any paperwork been filed?
Customer: It is in CA.
JA: Has any paperwork been filed?
Customer: Nothing except the divorce
JA: Anything else you want the lawyer to know before I connect you?
Customer: I don't think so
Submitted: 27 days ago.
Category: Real Estate Law
Expert:  AttyHeather replied 27 days ago.

Hi! I'm Heather. I've been a practicing attorney for the last 15 years, and I'd be happy to assist you for informational and educational purposes.

Expert:  AttyHeather replied 27 days ago.

If you do not get something in writing from you ex, then you are at risk of having an uphill legal battle. The problem is that the statute of frauds requires that transactions involving interests in land be in writing. The decree clearly awards him the property. Therefore, if you claim a verbal transaction from him wherein he agreed to give you the property, it will be hard to enforce in a court unless it is in writing. Yes, the house is in your name right now, but if he challenges you in court by bringing you back to court on contempt of court charges (because you did not transfer the house back into his name after he was awarded the house) it is possible that he could win.

In fairness, there are some cases wherein you can get around the statute of frauds, but you have to have an agreement, that you have already at least partially performed, and the agreement must be "clear and definite." It's hard to reach the clear and definite standard when you don't have a writing, so you have to have both relied on the verbal contract and performed your part, and you have to be able to explain to the court exactly what the terms of your agreement for the transfer of land was. It's an uphill battle.

Your best bet would be to see if there is any way you can get him to sign a quit claim deed over to you, and file that with the recorder's office on top of the deed which has the house already in your name. Until you get that, because of the decree of divorce, your ownership is shaky.

Does that answer your question?

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