Trust Deed Needs Both Husband & Wife Signatures To Be Valid

 In Real Estate
1. Judge Cancels Deed of Trust on Home Owned by Defendants (Husband & Wife) as Joint Tenants Because Defendant’s Wife Did Not Execute the Deed of Trust

In the case of Trenk v Soheili, Trenk, a lawyer, gets sued for malpractice. He settles with the plaintiffs and agrees to pay the plaintiffs $300,000, $100,000 over three years and a note secured by a deed of trust against his home for $200,000. Trenk’s wife does not sign the promissory note or the deed of trust. Trenk stops paying the plaintiffs money and the plaintiffs attempted to foreclose on the deed of trust secured by Trenk’s home.

Trenk successfully obtains an order from the court cancelling the deed of trust because Trenk’s wife, who is a joint tenant along with Trenk, did not sign the deed of trust.

Plaintiffs appealed, citing case law that a spouse’s interest in joint tenancy property is separate property for that spouse that he or she may encumber without the other spouse’s consent.

The trial court as well as the appellate court affirmed for lawyer Trenk, citing the case of In Re Brace. The titling of a deed as joint tenancy is not sufficient to show that the spouses intended to convert community property into separate property. The fact that the Trenks took title as joint tenants is not sufficient in and of itself to show that the husband had a separate interest in the residence that he could lawfully encumber with the trust deed. The court found that appellants failed to rebut the statutory presumption that the Trenks held the residence as community property. Because the wife did not execute the deed, the deed was voidable and the trial court properly canceled it.

Comment: Joseph Trenk obviously did not have legal malpractice insurance or else he would not be settling on his own, agreeing to personally pay the plaintiffs $300,000. I wonder if the plaintiffs are now going to sue their attorneys for malpractice. Why they did not require the wife to sign the note and the trust deed is beyond me.

About the Author

  • Scott Souders
    Scott Souders Attorney & Author


Scott Souders is a real estate attorney who has practiced real estate law in excess of 43 years in Southern California. The Real Estate Law Update cites cases or statutes which are summarized and should not be relied upon without fully reading the cases or statute in the advance sheets and shepardizing the same and consulting with your own attorney.

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