What is the difference between a grant deed and a marital deed? (Civil Code § 1092)

Underwood-Blog-Images-3-1-300x300The deed to a property is the most important document a property owner has. It describes the title and its associated rights while operating as the conveyance of property itself. But not all deeds are the same, especially when marriage enters the equation.

Marital deeds carry with them their own rules, rights, and duties requiring in-depth knowledge of family law and community property. And while spouses can choose to acquire property through a regular grant deed, more often than not, that isn’t the case. Understanding the differences between the two is of crucial importance for estate planning, and in these situations, having an experienced real estate attorney at your side can make all the difference. The Underwood Law Firm encounters both types of deeds with frequency and has the familiarity and skill to help title holders understand their rights.

What is a deed?

A deed is a written instrument (a document) that conveys or transfers the title to real property; it is an executed conveyance and operates as a present transfer of real property. (Estate of Stevens (2002) 28 Cal.4th 665, 672.) Deeds are also considered written contracts and are, therefore, subject to the rules applicable to and governing contracts. (Civ. Code § 1040; Johnston v. City of Los Angeles (1917) 176 Cal. 479, 485.)

Once executed, a deed becomes the grant itself. Because of this, a valid deed is subject to numerous requirements.

In order for the deed to function as a legally-binding transfer of real property, it must first be in writing. It must also name both the person conveying and receiving the title. It must be signed by the grantor under the Statute of Frauds, delivered to the individual receiving the deed, and finally, accepted by the grantee. (see generally Civ. Code § 1091.) If any of these “essential elements are missing, the deed is ineffective to transfer title.” (In re Marriage of Wozniak (2020) 273 Cal.App.5th 120, 134.)

What is a grant deed?

A grant deed is the most common method Californians use to transfer title to real property. (Miller & Starr 3 Cal. Real Estate § 8:5.) Authorized under Civil Code section 1092, the grant deed is called such because the person giving up the land is literally “granting” their property rights to another person.

With other types of deeds, this isn’t always the case. For example, quitclaim deeds are usually characterized by the words “release and remise.” There, the person transferring the title is not “granting” their property rights to someone else but instead “releasing” their interest in the property to another person.

This difference in language may seem trivial or inconsequential, yet the law stresses the importance of language. Thus, “the essential of such a [grant] deed has long been held to be the word ‘grant.’” (Klamath Land & Cattle Co. v. Roemer (1970) 12 Cal.App.3d 613, 618.)

What does a grant deed convey?

When a grant deed is used as the method of conveyance, it “conveys a fee simple title to the grantee for all purposes.” (Shuster v. BAC Home Loans Servicing, LP (2012) 211 Cal.App.4th 505, 511.)

A fee simple estate is a legal way of saying that one holds all the property rights possible associated with a certain piece of land. “Ownership of title in fee simple absolute includes the rights, subject to governmental restrictions, of full use and disposition of the property.” (Carlson v. Assessment Appeals Bd. I (1985) 167 Cal.App.3d 1004, 1013.) The title may endure forever, without limitation, and will pass to the grantee and their heirs.

The fee simple title is also alienable, devisable, and descendible. This means it can be sold at any time, transferred upon the owner’s death via will, or passed through the laws of intestate succession if no will is present.

In California, most title is held in fee simple, as it allows property owners to enjoy the maximum amount of property rights. But just because a grant deed is used does not mean the title is automatically conveyed in fee simple. Like all other types of contracts, intent matters. And any person transferring title, even through a grant deed, can intend to transfer a “lesser” estate. (Citizens for Covenant Compliance v. Anderson (1995) 12 Cal.4th 345, 378.)

What is a marital deed?

A marital deed is more a term of common description than it is an official legal phrase. As a general rule, married couples can acquire property in whatever type of estate they wish. The California Family Code section 750 states that spouses can hold property as joint tenants, tenants in common, as community property, or as community property with a right of survivorship.

The big distinction among the above is between community property and regular cotenancy. If the deed states that the property is held in a form of community property, then it becomes a “marital deed.” This means that the rights and duties of the spouses are governed by the Family Code and the laws of community property, which are very distinct from those associated with a joint tenancy or tenancies in common.

Notably, for spouses, a deed is either marital, or it is not. There is no in-between. “A community estate and a joint tenancy cannot exist at the same time in the same property.” (Jacquemart v. Jacquemart (1956) 142 Cal.App.2d 794, 796.)

What is distinct about a marital deed?

Understanding marital deeds require an in-depth knowledge of community property. Community property is a unique type of co-owned property that exists only for married spouses. It carries with it a number of legal presumptions that themselves could make up an entire blog post. Undoubtedly, though, the most important of these is that community property is presumed to be held in equal interests. (Fam. Code § 751.)

For example, if “Shawn” and “Julie” buy a home as tenants in common, then their ownership percentages can be in whatever proportions they want. But if they buy a home as community property, and the deed reflects this type of co-ownership, then their ownership percentages are equal, regardless of whether one spouse put down more money or paid more for property expenses.

What is the effect of spousal consent?

Another major difference with a marital deed is that it is filled with presumed restrictions that do not exist with a regular form of cotenancy. As stated above, a regular grant deed will normally convey title in fee simple. This means the title holder can transfer their interest to someone else whenever they want. This is not the case with marital deeds.

Per the Family Code, both spouses are required “to join in executing an instrument by which that community real property or an interest therein is leased for a longer period than one year, or is sold, conveyed, or encumbered.” (Fam. Code § 1102.)

This means that if the property was acquired through a marital deed, both need to agree to most transactions related to the property. For example, one spouse cannot unilaterally take out a mortgage on the property. They would be required to get the consent of the other.

Relatedly, and perhaps just as importantly, another major restriction on marital property is that it cannot be partitioned through regular civil action. Because the marital property is under the exclusive jurisdiction of the Family Code and Family Courts, only they are permitted to divide the property in a marital dissolution action. (see In re Marriage of Davis (1977) 68 Cal.App.3d 294.)

How can the Attorneys at Underwood Law Assist You?

Marriage is a life-changing event for many reasons, but the effects of marriage are perhaps most tangible with how it affects property.  Most people are so caught up in the gravity of the moment that this can often be overlooked, leading to unforeseen consequences down the line.

As each case is unique, property owners would be well-served to seek experienced counsel familiar with estates and property interests of all types. At Underwood Law, our knowledgeable attorneys are here to help. If you are concerned about whether your deed is marital, seeking to understand your property rights, or if you just have questions, please do not hesitate to contact our office.

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