Legal Question in Real Estate Law in California

A 73 yr Lady bought a piece of property in San Jose almost 24 years ago but could not qualify for the loan,,, instead her Brother decided to help her with qualifying for the loan and he signed the mortgage papers and got the loan for her,,, and she has diligently paid the mortgage all these years,,

The brother is now 70 and lives in North SFBayArea,,, last year he was placed in a mental evaluation facility for 30 days cause he was wandering the streets, didn't know who he was or where he lived,,etc,etc,, He said he lost his wallet and had no ID,,,,when he could communicate with his sister later on,,,,

The Sister is trying to find a way to get his name off the deed of the property and put her name on it instead because she believes that if the worst happens to her brother she could become homeless as a result,,,,,that lawyers/ probate court could make her homeless,,,, although its her property....

She was told to go to a nearby Notary Public and get a current "Durable Power of Attorney" signed by her brother,, but after countless attempts by email and phone calls(with no service available in his area) apparently his mental condition dose allow him to cooperate with his sister on this important matter,,,,,

How can she keep from becoming homeless because the brother is unable to sign legal papers for her to protect her property????

Any Suggestions or any Helpful Advise would be greatly appreciated


Asked on 7/03/17, 5:06 pm

1 Answer from Attorneys

Unfortunately she is in a really challenging legal situation. If her brother no longer has mental capacity to give a durable power of attorney, it wouldn't be valid anyway. In addition, the holder of a power of attorney is prohibited from "self dealing," i.e., doing anything for their own benefit using the power of attorney. The way to get around the lack of mental capacity would be to have her appointed as conservator of her brother. However, she would then be subject to the same no-self-dealing rule as the holder of a power of attorney.

As I see it she has two options. If there is someone else who is willing to apply to be the brother's conservator who agrees that she is entitled to the house, they could apply to be the conservator of the brother and then deed her the house. That would be a very risky course of conduct for the conservator, however, if any potential heir of the brother disputes her claim.

The safest option, but at very uncertain cost, would be to bring a quiet title action. This seems like a classic case of a purchase money resulting trust. If the brother does not contest it, the cost would be fairly modest and I am sure arrangements could be made with an understanding lawyer for payments out of the value of the house somehow. If the brother contests it, however, it could turn into costly litigation. Unfortunately, without the brother signing a deed, I can't see any other path that would get title in her name without the validity of the transfer being open to challenge, and/or considerable tangential risks of adverse claims and litigation.

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Answered on 7/06/17, 6:38 pm


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