[WSBARP] [WSBAPT] What the heck

Thu Sep 1 11:48:37 PDT 2022

Josh,

All three people are alive.  Grantor brother is not cooperating, yet.  The other “grantee” is the original Grantee’s son and will cooperate.  The language was created by Grantor/Grantee’s grandfather, who wanted the property to “stay in the family.”  I am hoping Quit Claim deeds from the Grantor and Grantee’s son solves the issue.   

Jeff

W. Jeff Davis

BELL & DAVIS PLLC

Attorneys at Law
P.O. Box 510

720 E. Washington Street, Suite 105
Sequim WA 98382
Phone: (360) 683.1129 
Fax: (360) 683.1258 
email: jeff at bellanddavispllc.com <mailto:jeff at bellanddavispllc.com> 
 <http://www.bellanddavispllc.com/> www.bellanddavispllc.com

The information contained in this e-mail message may be privileged, confidential, and protected from disclosure. If you are not the intended recipient, any dissemination, distribution, or copying is strictly prohibited. If you think that you have received this e-mail message in error, please e-mail the sender at  <mailto:info at bellanddavispllc.com> info at bellanddavispllc.com  or call 360.683.1129.

From: wsbapt-bounces at lists.wsbarppt.com <wsbapt-bounces at lists.wsbarppt.com> On Behalf Of Joshua McKarcher
Sent: Thursday, September 1, 2022 11:43 AM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
Cc: 'WSBA Real Property Listserv' <wsbarp at lists.wsbarppt.com>
Subject: Re: [WSBAPT] What the heck

Jeff,

Are all three parties named on the face of the deed alive and cooperative? Or is the problem that Grantor Brother does not wish for Grantee Brother to sell the property, but the latter wishes to?

If they are all three alive and cooperative, it is hard to believe the county assessor (for tax records) and some title company will not accept one of a few options, such as a correction deed that refers to the original deed by instrument number and simply gifts the property by statutory warranty deed without all the ludicrous language.

(I do not know that the existing deed creates a life estate. I think one person said MAYBE it did. I don’t think it’s clear it DOES.)

Then, if Grantee Brother wishes to sell the property, he can. You will have to get the excise tax affidavits “just right” but it is possible that they would allow you to refer to the PREVIOUSLY FILED affidavit by number if memorialized on the face of the deed and if the original was effectuated as a complete transfer of title in fee simple. (For how on earth would the assessor or anyone else have categorized it with that language?)

Otherwise, a quitclaim or “something” from all three parties to the Grantee Brother may work, and maybe it is signed at the same time as the warranty deed from Grantee Brother to the new, third-party buyer.

Good luck! Best, Josh

Joshua D. McKarcher

McKarcher Law PLLC

537 6th Street

Clarkston, WA 99403

(509) 758-3345

(509) 758-3314 (fax)

 <mailto:josh at mckarcherlaw.com> josh at mckarcherlaw.com

 <http://www.mckarcherlaw.com> www.mckarcherlaw.com

From: wsbapt-bounces at lists.wsbarppt.com <mailto:wsbapt-bounces at lists.wsbarppt.com>  <wsbapt-bounces at lists.wsbarppt.com <mailto:wsbapt-bounces at lists.wsbarppt.com> > On Behalf Of Jeff at bellanddavispllc.com <mailto:Jeff at bellanddavispllc.com> 
Sent: Thursday, September 1, 2022 10:35 AM
To: 'WSBA Probate & Trust Listserv' <wsbapt at lists.wsbarppt.com <mailto:wsbapt at lists.wsbarppt.com> >
Cc: 'WSBA Real Property Listserv' <wsbarp at lists.wsbarppt.com <mailto:wsbarp at lists.wsbarppt.com> >
Subject: Re: [WSBAPT] What the heck

Thank you for all of the responses.  It is confusing, like a law exam and was not done by a lawyer, . . . well a wannabe lawyer from the Yahoo-Google School of Law.  It turns out the grantor is the brother of grantee; both are living.  I wonder if  quit claim deeds from brother, and the third person, to grantee would clear title?  I would hate to start a quiet title action.  I may need to run this by a title company.

Thanks for your help! 

Jeff

W. Jeff Davis

BELL & DAVIS PLLC

Attorneys at Law
P.O. Box 510

720 E. Washington Street, Suite 105
Sequim WA 98382
Phone: (360) 683.1129 
Fax: (360) 683.1258 
email: jeff at bellanddavispllc.com <mailto:jeff at bellanddavispllc.com> 
 <http://www.bellanddavispllc.com/> www.bellanddavispllc.com

The information contained in this e-mail message may be privileged, confidential, and protected from disclosure. If you are not the intended recipient, any dissemination, distribution, or copying is strictly prohibited. If you think that you have received this e-mail message in error, please e-mail the sender at  <mailto:info at bellanddavispllc.com> info at bellanddavispllc.com  or call 360.683.1129.

From: wsbapt-bounces at lists.wsbarppt.com <mailto:wsbapt-bounces at lists.wsbarppt.com>  <wsbapt-bounces at lists.wsbarppt.com <mailto:wsbapt-bounces at lists.wsbarppt.com> > On Behalf Of Philip N. Jones
Sent: Wednesday, August 31, 2022 5:50 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com <mailto:wsbapt at lists.wsbarppt.com> >
Cc: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com <mailto:wsbarp at lists.wsbarppt.com> >
Subject: Re: [WSBAPT] What the heck

Very odd. Looks like a life estate (which is OK) combined with a restraint on alienation (which is not OK).  Shame on he or she who drafted it.

Phil Jones

Philip N. Jones 

Duffy Kekel LLP

Portland, OR

pjones at duffykekel.com <mailto:pjones at duffykekel.com> 

(503) 853-1482 cell

On Aug 31, 2022, at 5:05 PM, Eric Nelsen <eric at sayrelawoffices.com <mailto:eric at sayrelawoffices.com> > wrote:

Law school exam!

“In case of accident or death the property here-of will rightfully be returned to the Grantor.” This is too vague to be enforceable. What does accident mean? Death of whom? What does “rightfully” mean?

“In case of death of both parties the hereby property will be left in the name of [another person] with the agreement he cannot sell said property in his life time.” If “both parties” means Grantor and Grantee, then this is a failed attempt to create some kind of transfer on death contingency and doesn’t meet the statutory requirements, and likely was executed before the law was even enacted I am guessing.

“The Grantee agrees not to sell or lease the said property in the life-time of the Grantor.” This is phrased like a covenant and Grantee didn’t sign so I don’t think it would be enforceable. It’s phrased like a covenant, not a condition on the fee. It would be difficult to parse this into a valid fee determinable on a condition subsequent or other estate.

All that said, I bet a title company would list the language as an exception, so Grantee likely would need a declaratory judgment or quiet title action to remove the language as a cloud on title.

Sincerely,

Eric

Eric C. Nelsen

Sayre Law Offices, PLLC

1417 31st Ave South

Seattle WA 98144-3909

206-625-0092

eric at sayrelawoffices.com <mailto:eric at sayrelawoffices.com> 

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From: wsbapt-bounces at lists.wsbarppt.com <mailto:wsbapt-bounces at lists.wsbarppt.com>  <wsbapt-bounces at lists.wsbarppt.com <mailto:wsbapt-bounces at lists.wsbarppt.com> > On Behalf Of Jeff at bellanddavispllc.com <mailto:Jeff at bellanddavispllc.com> 
Sent: Wednesday, August 31, 2022 3:38 PM
To: 'WSBA Real Property Listserv' <wsbarp at lists.wsbarppt.com <mailto:wsbarp at lists.wsbarppt.com> >; 'WSBA Probate & Trust Listserv' <wsbapt at lists.wsbarppt.com <mailto:wsbapt at lists.wsbarppt.com> >
Subject: [WSBAPT] What the heck

Listmates:

By Statutory Warranty Deed, a person, for love and affection, conveys and warrants to Grantee, property.  After the legal description the following was added:

                In case of accident or death the property here-of will rightfully be returned to the Grantor.  In case of death of both parties the hereby property will be left in the name of [another person] with the agreement he cannot sell said property in his life time.

                The Grantee agrees not to sell or lease the said property in the life-time of the Grantor.

The deed was signed like any other deed, there are no witnesses.

Assuming Grantor is still alive, is Grantee prohibited from selling?  It seems the added language is in conflict with the convey and warrant language.  It possibly violates some legal rules.  Have any of you run into this before?  

Jeff

W. Jeff Davis

BELL & DAVIS PLLC

Attorneys at Law
P.O. Box 510

720 E. Washington Street, Suite 105
Sequim WA 98382
Phone: (360) 683.1129 
Fax: (360) 683.1258 
email: jeff at bellanddavispllc.com <mailto:jeff at bellanddavispllc.com> 
 <https://nam11.safelinks.protection.outlook.com/?url=http%3A%2F%2Fwww.bellanddavispllc.com%2F&data=05%7C01%7Cpjones%40duffykekel.com%7C413a66be2beb448b495208da8bada5eb%7C2d66ed5354fa4c2f8c4dbff1aca5479d%7C0%7C0%7C637975875193094188%7CUnknown%7CTWFpbGZsb3d8eyJWIjoiMC4wLjAwMDAiLCJQIjoiV2luMzIiLCJBTiI6Ik1haWwiLCJXVCI6Mn0%3D%7C2000%7C%7C%7C&sdata=XJM6EY%2FS7Au7elUzbOdbZG0%2Fuhpo1AAzNACGO9DppUg%3D&reserved=0> www.bellanddavispllc.com

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