- Find Attorney
- For Attorneys
By filing a deed at the county recorder's office, the ownership interest is established and on public record so that the public is assumed to have notice of the ownership right. Deeds are used to transfer real property and come in various forms. A deed is the written document which transfers title (ownership) or an interest in real property to another person. No consideration is required to make the deed effective. The deed must describe the real property, name the party transferring the property (grantor), the party receiving the property (grantee) and be signed and notarized by the grantor. In addition to the signature of the grantor(s), deeds must be acknowledged to be recorded and acceptable as evidence of ownership without other proof. A valid deed must be delivered and accepted to be an effective conveyance. Most states assume delivery if the grantee is in possession of the deed. The deed also must be accepted by the grantee. This acceptance does not need to be shown in any formal way, but rather may be by any act, conduct or words showing an intention to accept such as recording the deed. To complete the transfer (conveyance) the deed must be recorded in the office of the county recorder or recorder of deeds in the county in which the real estate is located.
There are many situations in which it may be desirable to add or delete a person's name from a deed, such as adding or removing a spouse, child or sibling. A person can only be deleted from a deed with their approval, i.e., they must execute the deed (sign and have their signature notarized). A quit claim deed is often used to transfer property from one spouse to another in a divorce or separation situation.
There are two basic types of deeds: a warranty deed, which guarantees that the grantor owns title, and the quitclaim deed, which transfers only that interest in the real property which the grantor actually has. The only type of deed that creates "liability by reason of covenants of warranty" as to matters of record is a general warranty deed. A warranty deed conveys specifically described rights which together comprise good title. The grantor warrants that the title is good, that the transfer is proper, and that there are no liens other than stated in the deed. The grantee can sue if the warranty is breached. A quit claim deed contains no warranties and the seller doesn't have liability to the buyer for other recorded claims on the property. The purchaser takes the property subject to existing taxes, assessments, liens, encumbrances, covenants, conditions, restrictions, rights of way and easements of record. The quitclaim is often used among family members or from one joint owner to the other when there is little question about existing ownership, or just to clear the title. If a deed is intended to be a general warranty deed, it should contain a phase specified by state law such as the phrase "conveys and warrants". These words, called operative words of conveyance, carry with them several warranties which the grantor is making to the grantee. An example of operative words of conveyance in a quitclaim deed is "convey and quit claim."
The consideration required to be stated in a deed may be anything of value, and may be stated as a nominal amount. A gift deed is a deed in which the consideration is not monetary, but is made in return for love and affection. It is a document which transfers property to another as a gift. It is used when nothing of monetary value is recieved in return. For example, when someone assume to make payments on behalf of another in return for a deed, the payments made on their behalf may be considered monetary consideration. Transfer of a gift deed can be reported as a gift for federal tax purposes.
Joint tenancy is a form of ownership by two or more individuals together that differs from other types of co-ownership in that the surviving joint tenant immediately becomes the owner of the whole property upon the death of the other joint tenant. State law, which varies by state, controls the creation of a joint tenancy in real property. Joint tenancy property passes outside of probate; however, it may be severed so that the property becomes part of one person's estate and passes to that person's heirs. Each joint tenant has an equal, undivided interest in the whole property, and may enter onto, take possession of the whole, occupy, and use every portion of the common property at all times and in all circumstances. All joint tenants, and their spouses, must sign deeds and contracts to transfer or sell real estate. On the other hand, if the deed provides for ownership as tenants in common, each owner will own a portion of the property, which may be unequal, but each will have the right to possess the entire property. There is no "right of survivorship" if one of the tenants in common dies, and each interest may be separately sold, mortgaged or willed to another. Upon the death of a tenant in common there must be a court supervised administration of the estate of the deceased to transfer the interest in the tenancy in common.