I am married in CA. I am 100% owner of a S-Corp in which a property is owned. Can I list this property to sell without spousal consent?

Asked by Shaun, Village 12, Sacramento, CA Wed Sep 8, 2010

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6
Sue Archer R…, Agent, Palm Harbor, FL
Wed Sep 8, 2010
You can list the property, but the title company will probably still need the signature by your spouse prior to transferring title to another party. California is a community property state as as such, each spouse has equal rights to all assets, whether they're in only one name or both. Therefore, the title company may need a signature from the other spouse (notarized) that they are aware of the transaction.

I also rely on Steve Beede, or other real estate attorneys, for answering these questions, but a title company might also be able to clarify their procedure for this type of sale. Your realtor could call their 'favorite' title and escrow officer and ask what their policy and procedure is.

So yes, you can list it, but no, you probably can't actually go through with the sale without the signoff of your spouse, I'm guessing.
Web Reference:  http://www.suearcher.com
2 votes
Norm Robert, , Elk Grove, CA
Wed Sep 8, 2010
Since the S-Corp is an entity in itself the owner of the S-Corp has the right to conduct all business including selling a property. You may have to look at wether or not your Spouse has rights to the activities of the S-Corp and an Attorney would be your best bet. I suggest a Real Estate Attorney. Try Steve Beede at http://www.stevebeede.com
Web Reference:  http://www.stevebeede.com
1 vote
Erin, , South Lake Tahoe, CA
Thu Sep 9, 2010
Hey Shaun--I'm not going to give you legal advice. In the real estate business, we say, "It takes one to list, two to sell." The title company you choose to be your escrow processor who is usually also your title insurance company will let you know if you need spousal consent. Orrrrrr, you can speak with an attorney.

In my experience, I've seen these matters go to litigation and other times, spousal consent is not a problem.

Good luck.
Web Reference:  http://SoldByEirn.net
0 votes
Karen Burns, , Sacramento, CA
Wed Sep 8, 2010
Hi Shaun,

I am not an attorney and urge you to seek the advice of an attorney. I am wondering why your property is located within an S-Corp. It is my understanding that S-Corps are pass through entities and corporations and LLCs should be where the property is placed.
0 votes
Jim Swanson, Agent, Sacramento, CA
Wed Sep 8, 2010
Actually, if the corporation owns the property, then the corporation can sell it. If you own the corporation (are the only shareholder) and there are no other members of the board, you should be able to authorize the selling of the corporation's assets. However, you need to make sure the corporation's papers and commitments are in place and you follow the corporation's bylaws. The IRS can challenge a corporation's ligitimacy if they determine the sole purpose of the corp is to skirt tax obligations. You should consult an attorney who is proficient in corporate law to ensure you won't get hurt down the line.

In summary, if the cor[poration owns the property, community property rules should not be an issue as long as it is a bonifide corporation (whatever that is).
Web Reference:  http://www.SacCityHomes.com
0 votes
Jim Walker, Agent, Carmichael, CA
Wed Sep 8, 2010
Shaun,

Listing the property is the preliminary step before you sell it. I divided your question into two separate questions.

First: You may list the property with your signature. She does not have to sign the listing agreement.
The listing contract is a contract to place the house on the MLS and advertise and show it. It does not transfer ownership. You will need the cooperation of anyone living in it, for showings of course.
That includes tenants and or wives.

The actual transfer of the deed at close of escrow may require her signature. As Norm suggested, you could ask a real estate attorney.

A less expensive way to get an answer might be to ask the title and escrow company that will be handling the transaction for you. If you do not have an escrow company in mind, I can give you the names of two or three knowledgeable escrow / title officers.

California is a community property state.

A companion issue is the availability of title insurance. If the title company won't insure, it is of little use to find a loophole to record a transfer of the property without her interspousal grant deed.

The above are opinions. NOT legal advice.
0 votes
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