Property Character Does Not Change Without a Deed

Title Insurance

A very recent Washington Supreme Court decision focuses on when separate property may become community property.  It requires everyone in the real estate business to reconsider what they think they know about community property in Washington.

Some lawyers are reacting with comments that this decision makes it hard to rely upon prior deeds to determine who owns the property.  I think this decision will help title companies have less trouble deciding when the parties intend to change the character of the property.

Lawyers have a saying that hard facts make bad law.  Well, the facts of the case seem simple, to a title geek.  

For those who want to read the Court's words, not rely on mine, it is named In the Matter of the Estate of Borghi, filed as docket no. 80925-9 on November 5, 2009.  It is a split decision; the opinion is signed by 4 Justices, 1 Justice concurred in the decision but not the opinion, and 4 Justices signed a dissenting opinion that disagrees with the conclusion. 

Just the facts:

In 1966, Jeanette Gilroy, an unmarried woman, entered into a real estate contract.  She married Robert Borghi nine years later in 1975.  Four months later in 1975, a fulfillment deed was signed from contract seller to "Robert and Jeanette Borghi, husband and wife."  Jeanette and Robert did not join on that fulfillment deed to acknowledge intent to hold title as community property.  They began to live on the property in 1975 and remained there together until 1990.  In 1979 Jeanette and Robert both signed as grantors on a Deed of Trust to buy a mobile home that was located on the property. The mortgage was later paid and released.  There never was a deed or any other document signed by Jeanette to add Robert to the title, or to state intent to establish community property.  There was no Community Property Agreement.  Jeanette died in 2005, still married to Robert, without a Will.  She was survived by Robert Borghi, her spouse, and by Arthur Gilroy, her son from a prior marriage. 

Before you read the decision or further below, based on your knowledge of WA title law, please answer these questions:

1.  Presuming the property was Jeanette's separate property when it was acquired by her as an unmarried person, did the fulfillment deed change the property to community property?

2.  When Jeanette and her new spouse signed a mortgage as husband and wife, did that change the property to community property

3.  Presuming a married couple borrows money secured by a mortgage on the separate property of one spouse, then uses the funds to build a house on the land, then live in it for 15 years while paying all the mortgage payments from the community assets, do those facts clearly and convincingly show they intended to change the property to community property?

Are your answers correct?   Here is how the Washington courts answered those questions:

The King County trial court concluded it was community property, so it was inherited by the husband.  Then the first level Court of Appeals (Division I) reversed, "reluctantly" concluding the property remained Jeanette's separate property, so it was inherited by her son.  In the recent decision, the Supreme Court agreed the property remained separate property. 

The Supreme Court opinion starts by recital of the apparently most important presumption:  "the character of property as separate or community property is determined at the date of acquisition." ... "Once the separate character of property is established, a presumption arises that it remained separate property in the absence of sufficient evidence to show an intent to transmute the property from separate to community property."

This decision quotes from a 1911 case, Guye v Guye, 63 Wash. 340:

Moreover, the right of the spouses in their separate property is as sacred as is the right in their community property, and when it is once made to appear that property was once of a separate character, it will be presumed that it maintains that character until some direct and positive evidence to the contrary is made to appear. 

The holding of this decision is, "Today we make clear that, once a presumption in favor of either community or separate property is established, the burden to overcome the presumption is by clear and convincing evidence."

This decision appears to overrule prior cases that discuss a "joint title gift presumption" arising from a change in title to include both spouses' names.  One may argue those cases were not expressly overruled, but after reading the opinion, I conclude that the presumption that property does not change character wins over any change in the names on the title unless there is also "clear and convincing evidence" the parties intend to change the character. 

How strong is that presumption?  How much evidence of intent is required to be "clear and convincing? 

Let's go back to the facts of this case:  Evidence that Jeanette and Robert accepted a fulfillment deed vesting in them as a married couple, accepted without a challenge for 30 years, followed by jointly signing a mortgage where the borrowed funds were used to acquire a house they lived in for 15 years, where joint funds were used to pay the mortgage over many years, was not clear and convincing

This opinion is authority that clear and convincing evidence the party holding as separate property intends to change the property to community property occurs by a signed and acknowledged deed or community property agreement.

But, what about their joint signature on the mortgage?

This Court opinion did not state how Jeanette and Robert's names appeared on their grant of a Deed of Trust.  However, that certainly is a conveyance, is acknowledged and recorded.  The opinion discusses the effect of that document as follows in a footnote:

"To the extent the Estate relies on Robert and Jeanette Borghi's subsequent use of the property to secure a mortgage under which they were jointly obligated, this fact is immaterial to the determination of the character of the property.  Under the date of acquisition rule noted above, the separate property character of the property was established at the time  Jeanette Borghi contracted to purchase the property.  Later community property contributions to the payment of obligations, improvements upon the property, or any subsequent mortgage of the property may in some instances give rise to a community right of reimbursement protected by an equitable lien, but such later actions do not result in a transmutation of the property from separate to community property." [citations omitted.]

The decision repeats that the names on the deeds do not establish community or separate property.  That depends on the source of funds and the intent of the parties.   Absent clear and convincing evidence that the parties specifically intend to change the character of the property, "no presumption arises from the names on a deed or title."

Rules for Title Examiners:

The lesson of this decision is clear, and simple:  Title examiners should not change vesting just because a fulfillment deed, deed of trust or other conveyance from both may show both their names.  We should show vesting as the title was acquired, then show a Schedule B exception for "possible right, title or interest of [spouse] disclosed by the joint signature on the prior deed of trust."  We should not change vesting unless the originally vested owner signs an acknowledged deed, or community property agreement, that changes the vesting. 

See, this Supreme Court decision actually makes the decision of the title company easier than it was before. 

Now, it's your turn:  Do you think the Court got the answers right? 

Feel free to comment, respectfully, on the decision of four out of the nine Justices. 



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John Juarez
The Medford Real Estate Team - Fremont, CA

This decision does not make sense to me but I am not a judge, lawyer or resident of Washington State.

The majority (5 to 4) wins, but it still sounds wrong.

Nov 18, 2009 04:25 PM #1
Elite Home Sales Team
Elite Home Sales Team OC - Corona del Mar, CA
A Tenacious and Skilled Real Estate Team

Now that may sound easy and plain simple to you. but that is very confusing to me.

Nov 18, 2009 04:34 PM #2
Dwight Bickel
Seattle, WA
Regional Counsel for Fidelity National Title Group

Sarcasm is an art form.  Don't think I meant that the answers of this decision are easy.

Nov 18, 2009 04:56 PM #3
Rebecca Wiess

If Robert had died before his wife, and left his interest in the property to a third party, then the logic of this decision says that the third party either takes nothing, or at best takes the right to an expensive probate litigation.  Not a good decision.

Nov 19, 2009 04:06 AM #4
Dwight Bickel
Seattle, WA
Regional Counsel for Fidelity National Title Group

With the same chain of title in the Borghi opinion, if Robert died intestate, I believe no title company would insure Jeanette has title free of Robert's heirs or devisees.   I believe every title company will continue to show a "right, title and interest, if any, of Robert" as an exception paragraph.   The effect of that is the title company will either require probate, or "lack of probate" underwriting to remove or reduce the risk of his heirs and devisees based on assurance affidavits and deeds from his heirs and devisees. 

Obviously, a Will that gives his interest in this property would also require clearing the interest of his heirs and devisees.  Even If Robert died with a Will that does NOT describe this land, but gives his estate to another, title companies would require probate or lack of probate underwriting. 

Rebecca's conclusion though is that a Probate court following Borghi may well conclude that Robert would get nothing.   After his death, how can an ordinary couple prove they intended community property?  Sure they can sign a deed or CPA.  If the ordinary couple ask a lawyer familiar with this new decision, they would know that is required.  The vast majority of people, and quite a few real estate professionals, will not expect they must sign a deed or CPL.

Isn't the real problem we have with the conclusion here based on the factual conclusion?  I mean, most people seem likely to conclude these facts were clear and convincing that community property was intended.   I don't know that the Borghi opinion changes the law.  Before or after, if a trial Judge finds the evidence was clear and convincing that Jeanette intended to convert the property character to community, the same answer applies.

Maybe the only lesson here is that there is no presumption of a gift based on the names on title.

Nov 19, 2009 04:44 AM #5
Joy Canova - Seattle
Coldwell Banker Bain - Seattle, WA

An eye opener for sure...

Feb 20, 2010 01:21 AM #6
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Dwight Bickel

Regional Counsel for Fidelity National Title Group
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