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ThatTenant

California Grant Deeds and Deeds of Trust

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Suppose, In California, a grant deed is made and recorded that incorrectly describes the interest to be conveyed to be an undivided 1/2 interest when the grantor actually only held title to a 1/4 interest. Would the grant deed effect a transfer of the actual 1/4 interest in the grantor, contrary to the legal description of the interest in property in the deed, or would it transfer nothing at all? Would a court determination of what was actually transferred hinge on whether the error in the property description was accidental or intentional?

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So, what you are saying is that two boneheads drafted their own deed and didn't figure out what went wrong until some time later.

 

If it was intentional, it's fraud and the perpetrator goes to jail while the grantee tries to get his money back.

 

If it was accidental, I expect that the court will compel the grantor to correct the error and award monetary damages to the grantee who got less than he paid for.

 

Above is my two cents worth and I could just as well be wrong as right since you have revealed no details as to who did what and who wants what.

 

 

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Adjuster Jack: In the actual case I believe it WAS fraud but forget about jail. The jurisdiction involved told me they will NOT prosecute crimes involving real estate, period. Their supposed justification is that anyone harmed by real estate fraud can get it taken care of in civil court. My response was that Marcia Clark could have made the same argument to the families of Nichole Brown Simpson: "we won't prosecute OJ because you are going to go to civil court and sue him." I agree it is obvious that district attorneys have a duty to the entire state to prosecute crimes for the obvious purpose of preventing the accused from committing further such acts and for creating a disincentive for others to do the same.  However, there is no recourse to the victims of crime if a DA would rather go fishing. It shouldn't be that way and I observe that in California, even judges are overseen by the Commission on Judicial Performance. DAs have no such oversight.

 

The reason I didn't provide the many details that the question involves was to try to accurately reduce it to its essence to not waste your time. I realize a correction to the deed could be recorded but it in this instance it won't be because (a) the grantor is also the grantee (grantor as successor trustee to grantee as their sole and separate property) and (b) further conveyances of any interest the grantor may have held have already been recorded. A lender loaned money to the grantor in return for a trust deed on the false 1/2 interest as security for the loan. The grantor's interest, if any (that's my question), was later sold by court order (action in partition), with the proceeds of sale going to the grantor for their supposed 1/2 interest. The real nub of the question for me then is can the lender foreclose on either a 1/2 or a 1/4 interest in the property? There is an acceleration clause in the trust deed but my belief is that because the grantor received the value of their share (and then some) in cash, the interest that the trust deed purports to hold as security was converted to that cash. As such, I believe the trust deed is a claim on a property interest that was extinguished by that sale and no longer exists and, therefore, the trust deed is incapable of being enforced.

 

All I think I really need to know is whether the grant deed transferred a 1/4 interest despite the fact the legal description in the deed of the grantor's fractional interest was incorrect on the high side.

 

Thanks for your thoughts.

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3 hours ago, ThatTenant said:

Suppose, In California, a grant deed is made and recorded that incorrectly describes the interest to be conveyed to be an undivided 1/2 interest when the grantor actually only held title to a 1/4 interest. Would the grant deed effect a transfer of the actual 1/4 interest in the grantor, contrary to the legal description of the interest in property in the deed, or would it transfer nothing at all?

 

Just to confirm, O owns a 1/4 interest in Blackacre and signs a that conveys to X "an undivided 1/2 interest in Blackacre."  Correct?  In case you don't know, "Blackacre" is a term that legal writers have used for centuries to refer to a hypothetical piece of real property.

 

In any event, please quote the granting language of the deed word for word (with any names and specific references to the property removed or changed).

 

 

3 hours ago, ThatTenant said:

Would a court determination of what was actually transferred hinge on whether the error in the property description was accidental or intentional?

 

Probably.  The goal of a judicial determination would be to ascertain the grantor's intent.

 

 

2 hours ago, adjusterjack said:

If it was intentional, it's fraud and the perpetrator goes to jail while the grantee tries to get his money back.

 

I don't agree with that.  Among other things, that the grantor only owned a 1/4 interest would have been a matter of public record that the grantee could and should have discovered by conducting a basic title search.

 

 

1 hour ago, ThatTenant said:

in California, even judges are overseen by the Commission on Judicial Performance. DAs have no such oversight.

 

Umm...sure they do.  They're subject to oversight by both the State Bar and the CA Department of Justice.  Also, since district attorneys are elected, they're subject to oversight by the voters of the counties where they serve.

 

 

1 hour ago, ThatTenant said:

the grantor is also the grantee (grantor as successor trustee to grantee as their sole and separate property)

 

I don't really understand the part in parentheses, but if the grantor and grantee are the same person, there can be no fraud.

 

 

1 hour ago, ThatTenant said:

A lender loaned money to the grantor in return for a trust deed on the false 1/2 interest as security for the loan.

 

Sounds like the lender didn't do appropriate diligence.

 

The situation you've described sounds way too complicated for us to provide any truly useful commentary.  You didn't indicate your role in the situation, but I suggest you confer with a local real estate attorney for review of the relevant documents and advice.

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Your comparison between a title issue and murder is ludicrous.

 

You're not being clear about who did what to who. Perhaps you can use made up names and go back to the beginning. If what happened is not entirely clear to an attorney (PG1067) it should be no surprise that it's not clear to me.

 

And if this thread has anything to do with your last two threads, I suggest you combine the information and tell the story chronologically from the beginning. Asking what a court might do under unclear circumstances doesn't really cut it.

 

 

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PB1067: The grant deed reads as follows: "For a valuable consideration, the receipt of which is hereby acknowledged, Mr. X, the successor trustee for the Miss Y Revocable Trust, dated April 1, 2019, hereby grants to Mr X, as his sole and separate property the following described real property in the County of Gold Dust in the State of California: Blackacre."

 

I agree the lender did not do "appropriate diligence."

 

Just so things don't get too complicated, my question was only intended to ask if a grant deed would transfer what the grantor actually owned, no more and no less, even if the property description purported a larger fractional interest in the grantor than the record establishes.  I think I understand a quit claim deed, had that been used rather than the grant deed, could have given the property description with or without specifying any claimed interest fraction and still transferred whatever the interest the granter actually had. So I think my question might reduce down to "does a grant deed transfer the same amount of real property interest as a quit claim deed if the grant deed overstates the fractional interest of the grantor?" I have seen conflicting descriptions online of whether a grant deed represents any kind of assurance, over and above that of a quit claim deed (but less than a warranty deed) of the reliability of the title being transferred. My expectation is that a grant deed does contain at least a promise that the grantor had the title the deed purports to convey. If that is true, then I hope that means no amount of interest in title would be transferred because the grantor made a promise they knew or should have known was false. (My understanding is a quit claim deed is caveat emptor as to the quality of the title being transferred, which I hope is at least part of what distinguishes it from a grant deed.)

 

It's off topic but regarding your assurances on the oversight of District Attorneys, I wrote the California AG asking him to prosecute in the DA's stead, per Penal 923(a) and 923(c), where the local DA would not. I'd be glad to send you a redacted copy of the complete reply. It reveals the AG's view of decisions by DAs to be essentially sacrosanct. Here's one paragraph: "We understand it is not uncommon for members of the public to differ with the district attorney on the question of whether the filing of criminal charges is warranted. However, that decision rests with the locally elected official responsible for such a decision, the district attorney." I did file a formal complaint with the state bar. I'm not sure i could send you even a redacted copy of their 2 page reply but get this: "As the elected district attorney of [Lawless County], Mr. [SeeNoEvil] has the prosecutorial discretion to decide which cases his office should file and which cases to dismiss, based on the merits of the complaints, available resources and priorities in his office. He is not your attorney and owes no fiduciary duties to you. This is a matter that is outside the purview of the state bar." I'm sure you are correct on the law but if the AG and the state bar refuse to question the conduct of a DA, then, practically and respectfully speaking, I was correct in saying there is no oversight.

 

I have consulted with several attorneys on this matter, at significant expense. Their advice has been contradictory. I'll hire another one if need be but I am determined to understand where I stand as best I can first. I hope to negotiate a resolution with the lender, who has already indicated a willingness to talk.

 

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AdjusterJack: I was only asking a theoretical question of law and not meaning to ask for a complete assessment of my actual situation. That theoretical question was whether a grant deed that claims a greater fractional interest in the grantor that actually exists would nevertheless transfer the smaller fractional interest that the grantor actually did have. That's all.

 

My analogy above is valid because the DA used as basis for refusing to prosecute that my allegations of multiple felonies by multiple people are obviated by my right to ask a civil court to pay me damages. If that is a valid theory of law, why is it applicable to me and not to those families, who were only tangentially the victims of crime. What is truly ludicrous, in my view, is that a DA would tell me, in essence, that criminal and civil prosecutions are mutually exclusive: that one precludes the other. His letter said he was not going to prosecute "because it appears to be a civil matter." He was not giving me friendly advice that I could go to civil court. He was saying he based his decision on the fact I might have a civil claim. His one and only job is to prosecute crime and he refused to do it. He did not state that my allegations were unsupported by the facts. He did not say the law did not support my conclusion that a crime was committed (although that might be read between the lines). Had he said that, I could have nuked it. In fact I did. I reported a redacted summary of my allegations in the local newspaper and the DA did not deny a single one.

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In your scenario, the trustee conveyed an incorrect portion of the tenancy to himself.  Obviously that could not be fraud.  He the obtained a loan using the incorrect interest as collateral.  The victim, thne, was the lender.  If the victim chose not to press the matter, the prosecutor was certainly justified in not prosecuting.

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15 hours ago, ThatTenant said:

PB1067: The grant deed reads as follows: "For a valuable consideration, the receipt of which is hereby acknowledged, Mr. X, the successor trustee for the Miss Y Revocable Trust, dated April 1, 2019, hereby grants to Mr X, as his sole and separate property the following described real property in the County of Gold Dust in the State of California: Blackacre."

 

This introduces a significant issue that hadn't previously been mentioned.  A trustee who transfers a trust asset to himself is engaging in self-dealing.  That would be presumed to violate the trustee's fiduciary duty to the beneficiaries of the trust and, unless the trustee also happens to be the sole beneficiary, probably would result in the transfer being voided if challenged.  This language does not contain any information relating to the issue raised in your original post (conveyance of "an undivided 1/2 interest when the grantor actually only held title to a 1/4 interest").  However, the fiduciary duty issue would almost certainly make consideration of that issue unnecessary.

 

 

3 hours ago, RetiredinVA said:

In your scenario, the trustee conveyed an incorrect portion of the tenancy to himself.  Obviously that could not be fraud.  He the obtained a loan using the incorrect interest as collateral.  The victim, thne, was the lender.  If the victim chose not to press the matter, the prosecutor was certainly justified in not prosecuting.

 

I concur.  As I mentioned previously, where the grantor and grantee are the same person, there can be no fraud, and there can be no fraud on the lender because the nature of the grantor's ownership interest is a matter of public record.

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To PG1067: I tried to ask a very limited question as to whether a grant deed would hold water when the legal description of the property was correct as to boundaries and incorrect, on the high side, as to the fractional interest in the grantor. I still don't see an answer to that. I have found several sources that provide the requisites of a valid deed. One of those requisites is an "adequate" description of the property. Unfortunately, what I have found in the couple of books on California real estate law I have checked have not cited civil code sections that might lead me to cases and law review articles to better understand what is "adequate." I also have not found the types of deeds in California directly and simply defined in the civil code. The closest I can get is CC1092, which appears to be the origin only of the means of transferring property generally.

 

FYI, I never said I alleged fraud or that law enforcement declined to prosecute fraud. Adjuster Jack raised fraud speculatively in his first response and I fell for it hook line and sinker. In agreeing that there was "fraud," I only meant that I thought there was an intent by the borrower to get a loan based on false pretenses to the lender of the value of the property being offered as security for the note. I have not studied "fraud" in the strict legal definition and context and it's not my issue. As I think I described in a previous post, I asked the lender to voluntarily reconvey their trust deed because it was recorded after lis pendens of the partition action and the judgment rendered in that action disposed of the title contrary to the trust deed and the trust deed was therefore made void by that judgment as per CC1214. The lender initially refused my request but offered in writing to reconvey the trust deed for money I did not owe. So my complaint to law enforcement was for violation of Penal Code 523 (attempted extortion in writing). I also alleged Penal Code 115 (offering false document for recording). As I said, their response was that my allegations were a civil matter. Even if  the facts don't support my allegations, they are allegations of crimes and it was invalid, at best, to term them "civil." By the way, I made a demand on the lender to provide a "Beneficiary Statement" under the law and obtained the current balance of the loan. It exceeds what the lender had offered to reconvey the trust deed for, proving that amount was not an offer to reconvey in return for paying off the borrower's note at my expense.

 

As to the lender choosing not to allege fraud, the lender may not be aware of the defect in the property description in the deed by which the borrower alleged acquisition of a 1/2 interest. They are about to find out. Whether they want to go after the borrow is their business. I just want the trust deed off my property. I'm going to describe the situation to them. I think I'm going to persuade them. If they begin foreclosure or if they refuse to voluntarily reconvey, then it will be lawyer time (again).

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1 hour ago, ThatTenant said:

I just want the trust deed off my property.

 

Without going back and reading all the bits and pieces of information you've provided I believe that this is the first inking that you OWN (or are AN owner) of the property and somebody (not you - perhaps the co-owner) somehow encumbered the property by borrowing against it.

 

Is that correct?

 

 

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2 hours ago, ThatTenant said:

To PG1067: I tried to ask a very limited question as to whether a grant deed would hold water when the legal description of the property was correct as to boundaries and incorrect, on the high side, as to the fractional interest in the grantor. I still don't see an answer to that.

 

The answer is that it depends on the relevant facts and circumstances (although, given what you've told us, "hold water" is ambiguous).  While I can appreciate your intent to "ask a very limited question," some legal issues are not reasonably susceptible to that sort of treatment.

 

FWIW, I'll repeat what I wrote in my original response:  The situation you've described sounds way too complicated for us to provide any truly useful commentary.  You didn't indicate your role in the situation, but I suggest you confer with a local real estate attorney for review of the relevant documents and advice.

 

P.S.  Nothing in the Civil Code will be of any real use to you on this issue.

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Yes. Again, I have tried to ask a straightforward question limited to help me understand what, if any, interest would have been transferred by a grant deed that correctly described the physical boundaries of the property but overstated the fractional interest in the grantor. I was not asking for any actual evaluation of my particular situation, which is very involved and I don't mean to give you all a headache.

 

Since I asked the question, I have found some information on what is required to effect a valid deed in California but all these sources are informal and, in my opinion, unreliable. One said, among other requirements, that there must be an "adequate" description of the property. Another just said the property description must distinguish the property from others. So I still don't know if the deeds I'm looking at are invalid or not on the single basis they contain magnitude errors as to the fractional interests.

 

As far as I have been able to find, California's Civil Code does not explicitly define the three basic deeds we use: Grant Deed, Quit Claim Deed and (rarely) Warranty Deed although I did find what I believe to be the origin of them all: CC1092. That is surprising to me and I'm still assuming it's there and I've missed it but it could be that these deeds are only to be found in the case law. If Grant Deed, Quit Claim Deed etc were defined explicitly in the Civil Code, I should be able to go to the law library and read annotations to those sections. However, unless I can discover such code sections exist, it's not worth the trip.

 

Thanks for your comments.

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