Even lawyers make mistakes when it comes areas outside their area of expertise. Branter v. Smith, A-23-464 (August 27, 2024) is a prime example.
Bob Branter was a trial lawyer who lived in California. He apparently grew up in the Midwest. At one time he was romantically involved with Carol Smith, but the romance ended and they remained friends.
Bob owned a house in Ventura, California which was destroyed by a wildfire. Because of that, he allegedly couldn’t purchase homeowner’s insurance on a house in Nebraska. For the sake of this post, I’ll take that as true but what a bizarre rule.
In November 201, Bob paid for and purchased a house in Bellevue and the deed listed Bob and Carol as joint tenants with rights of survivorship. That was the big mistake as Bob paid for the entire house and Carol was only listed on the deed so that insurance could be purchased.
Depending upon what the insurance company would have accepted, Bob and Carol should have taken title with Bob, for example, owning 95% of the property and Carol owning 5% and as tenants in common and not as joint tenants. Another way to placate the insurance company would be to have a trust own the property and the trustee would be someone other than Bob. A third solution would be to have a nominee listed as the title owner.
Eight months after the JTWROS deed was recorded, Bob drafted a document called “the ownership agreement.” Another big mistake. The Court of Appeals slipped into the opinion the sly observation that, “the document was drafted because Bob wanted to avoid future conflict between the Branter and Smith families.” It didn’t help one bit as there was a trial and appeal in this case.
The ownership agreement was inconsistent with the legal effect of the JTWROS deed. It recited that Bob “owns 100% of the title, deed and property.” It goes on to state that upon Bob’s death, the real estate will “transfer to his children.” Well, it would take probate to do that given the title to the property at that point. Finally, somehow Carol’s name “will be removed from the title” once Bob was able to purchase homeowner’s insurance in his own name. How Carol’s name was going to “be removed from the title” isn’t stated.
Carol rented the property from Bob for $700 per month which was equivalent to the taxes and insurance for the property.
Bob died in March 2021 and Carol died in June 2021. So their kids were left to sort out this mess.
The district court held that the 2018 joint tenancy deed controlled, and it would not examine any extrinsic evidence (including the ownership agreement and any oral agreements) that contradicted the deed. I’ll add here that before his death Bob severed the joint tenancy by conveying his interest to himself and his children. And then the day before his death, Bob’s daughter used her POA to convey all of Bob’s interest to Bob’s revocable living trust.
Bob’s children made a number of arguments that Carol’s children had no interest in the real estate. But the Court of Appeals affirmed the trial court. Because the joint tenancy had been severed by the two 2021 deeds, Bob’s children still had a 50% interest in the property but they didn’t have a 100% interest even though their dad paid for the entire property.
Judge Welch dissented. That’s rare. He was of the opinion that A resulting trust should have been imposed and that Bob’s children should own the entire property. He thought that because Carol did not provide any consideration for the real estate purchase, the court could examine the intention of the parties. Judge Welch also thought there was clear and convincing evidence to that effect.
It will be interesting to see if the Supreme Court will accept the case for further review if a petition is filed.
DIY legal projects oftentimes end up costing a person way more than what paying a lawyer a fee up front to do the job right.
