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My moms house was going into foreclosure in 2011, I was

Customer Question
living with her at the...
My moms house was going into foreclosure in 2011, I was living with her at the time and I was about to get married so i needed a house. I asked my fiance to buy the property (through short sale) under her name, becuase i couldnt since i was related to my mom.At the time the short sale was approved my now wife and i were not married, but when we closed escrow we were married. 2 questions I have if she does a spousal transfer to me will I own the property only?
Also if she transfers the property to me it wont be considered real estate fraud since it was a short sale?
Submitted: 2 years ago.Category: CA Real Estate
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Answered in 7 minutes by:
1/31/2016
Lawyer: CalAttorney2, Attorney replied 2 years ago
CalAttorney2
CalAttorney2, Attorney
Category: CA Real Estate
Satisfied Customers: 10,244
Experience: I have experience representing HOAs, homeowners, businesses, and other individuals in real estate matters.
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Dear Customer,

It is possible to transfer the property from one spouse to another though what is called "transmutation" (see: http://static1.squarespace.com/static/52090c00e4b0734e32dca796/t/52c47908e4b050ec8fce01ed/1388607752378/CRAIG+final+.pdf for a discussion of this in CA and some of the considerations and cautions of this transfer).

It is extremely unlikely that such a transfer taking place 4 years after the short sale would be considered "fraud" - the bank is unlikely to be interested in the subsequent transfer in the first place, and in the second, in order to show fraud, the bank would be required to show that there was an intent to defraud the bank at the outset. This is a very high standard of proof (proving fraud is very difficult), the statute of limitations is short (2 years from the act, or from reasonable discovery in CA), and the bank would have to show actual damages (remember, they bargained for the short sale with your spouse, they weren't forced into the sale - so they would have to show that they would have gotten a better deal in some other transaction absent your spouse purchasing it from them - a mortgage lender is a sophisticated real estate entity, they are not going to be able to argue that they were taken advantage of in this situation).

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Customer reply replied 2 years ago
what about the property, the down payment was seasoned in my account until the short sale approval, then i had to add my fiance on my account as joint account holder, so that she can get the loan. we got married 2 months later. Will it be considered separte property or communtiy property?
Lawyer: CalAttorney2, Attorney replied 2 years ago

If the home was purchased in her name - she is the owner of the home.

The money that you gave to her to purchase the home as a down payment is going to be categorized as a gift.

Money that is used to pay the mortgage during the marriage is generally considered community property - however, if it is going towards a separate property (such as a home owned by one spouse) the money may be considered transmuted and become separate property of that spouse.

Keep in mind - this is only "general information" and you really should speak to a local attorney, the specifics of your transaction (including the language in the deed, any communications between spouses, the nature of your accounts, etc.) can change the way in which these general rules apply. It is incredibly important to have a local attorney to help you work through these. If you are contemplating a divorce or separation - in which these discussions are usually held - it is even more important to have this type of conversation with a local attorney as protecting your share of these interests is going to be leveraged in both negotiations and as part of an overall or global litigation strategy (remember, divorce proceedings are contested or adversary proceedings).

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Customer reply replied 2 years ago
i understand, but when she deeds the house to me will it be seperate property or community property?
Lawyer: CalAttorney2, Attorney replied 2 years ago

If she transmutes the property to you, it will be your separate property.

But please read the article I provided to you above as it discusses some of the considerations associated with these transfers (including a "presumption of undue influence" and the importance of doing this carefully).

I know that customers do not come to this forum to be told "go hire a lawyer" - but when you are talking about preserving your rights with regard to a significant asset such as your home, I would highly encourage you to at least consider retaining counsel.

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Customer reply replied 2 years ago
i understand that, but in a court what factors will a judge look at to rule community property or seperate property?
Lawyer: CalAttorney2, Attorney replied 2 years ago

Dear Customer,

If you read the article I posted you will see a detailed review of what courts evaluate when looking at transmutations past the initial deed that actually transfers the ownership or title to the property.

The law review article is from 2013, is well referenced, and has all of the detail you will need to make a nuanced decision.

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Customer reply replied 2 years ago
you mention the down payment being a gift, but can i prove that since i couldn't be the buyer of the home legal, I was obligated to gift her the down payment.
Lawyer: CalAttorney2, Attorney replied 2 years ago

Dear Customer,

You were not obligated to do anything, you chose to make the gift.

If you get a very creative attorney they may be able to find a way that there was a contract formed between you and your spouse, but I don't see one based on the facts as you have posted them.

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Customer reply replied 2 years ago
last question, will the property taxes stay the same in a spousal transfer in california?
Lawyer: CalAttorney2, Attorney replied 2 years ago

Transfers of title between spouses are automatically excluded from reassessment under Prop 13, see: https://www.boe.ca.gov/proptaxes/faqs/changeinownership.htm

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Customer reply replied 2 years ago
a follow up question, when the property was aquired my spouse help property as a single woman, then in early 2015 we refinanced she gave me a quitclaim deed as a married woman who acuired title as a single woman quitclaim to husband and wife as joint tenants. The escrow officer told me last year if you remove her on title completly u might be reassesed bacause she purchased the property as a single woman.Now were joint tenants as husband and wife if i take her off will my property taxes get reasessed?
Lawyer: CalAttorney2, Attorney replied 2 years ago

Dear Customer,

Please see Rev. and Tax Code 63: http://www.leginfo.ca.gov/cgi-bin/displaycode?section=rtc&group=00001-01000&file=60-69.5

I cannot tell you why the escrow officer gave you different information for your property, but escrow officers are not tax professionals - if you want professional tax advice, speak with a CPA or a Tax Attorney.

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Customer reply replied 2 years ago
escrow officer said she was not sure since the title of property was help originally as a single woman, but now were husband and wife as joint tenants if i remove her off title with a spousal deed will property taxes remain the same? doe it make a difference how you held title originally?
Lawyer: CalAttorney2, Attorney replied 2 years ago

The tax exemption is based on the individual, that is holding it, not the "as a single man/woman" vs "as a married man/woman" that part is superfluous.

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Customer reply replied 2 years ago
if i aquire property through my spouse, through a spousal deed the same tax base she was paying will remain?
Lawyer: CalAttorney2, Attorney replied 2 years ago

Yes, please review the BOE link I provided earlier for more detailed information.

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