Correctly transferring the ownership of real estate property is critically important, as a family home, some vacant land, or even a rental or commercial building is often a person's most valuable asset.
If you need to transfer the ownership of real estate from one person to another, you will need to use a Deed. But which one? That answer depends on what is the reason for the transfer, what goals are intended by the transfer, and who is going to hold title to the property after the transfer.
At its most basic, a Deed acts as the document showing the transfer of a piece of property from one person or party to another. Upon the closing of a real estate transaction, the purchaser of the property will tender the purchase price to the seller who then tender a Deed to the purchaser - who will then file the Deed with the recorder's office or real estate office in the county where the property is located.
In other cases where there is no true 'sale' but title to real estate is transferred from one person to another without a significant payment (example: a mother or father transfers property to a child or other relative), a Deed is used to transfer title when the Deed is filed with the appropriate recorder's office.
In either case, a fee for filing the Deed and transferring the property will usually be required.
On the Deed itself, the sellers must provide the legal description of the property - this description (which is NOT the address) legally identifies the property. It is CRUCIAL that this information be accurately set forth on the Deed. The seller/grantor (i.e. the person transferring title) must sign the Deed in the presence of two witnesses. The witnesses must both sign and print their names. The purchaser or transferee does not have to sign the Deed. The seller must also have the Deed notarized - meaning that it must be signed in the presence of a notary or the seller must testify to the notary that his/her true and accurate signature appears on the Deed.
Let's take a look at the three most common types of Deeds used to transfer the ownership of real estate, to help you determine which Deed you might use for your property:
A Warranty Deed by definition is a Deed which conveys the title to property whereby the seller makes some guarantee that the title will be good and unencumbered, except as stated on the Deed, and agrees to defend and protect the purchaser against any loss that may arise in the future from any defect in the title at the time of conveyance.
The warranty Deed is the most common type of Deed used to transfer property from one individual or business to another. Warranty Deeds usually require that a title search be conducted to ensure that the property is free and clear of liens or encumbrances. Any lien or encumbrance discovered would effectively 'cloud' the title of the property and make warranting the property risky or impossible.
This Deed can be used to conveying property from a seller to a purchaser in a variety of situations - most commonly when a person or couple purchases a house from a homeowner and needs to transfer title; or when a relative desires to name another person as the co-owner of a house or parcel of property that he or she currently owns by him or herself.
This type of Deed contains no 'warranties' that the property is being transferred with good title or without encumbrances except those that are filed on record, nor is any joint tenancy or right of survivorship created. This Deed tells the person accepting the title to the real property that they will be taking whatever rights or interests that the seller or grantor has in the property, nothing more and nothing less. Often, in true arms-length sales of real estate, a buyer should insist on a warranty Deed rather than a quitclaim Deed – since the buyer would want the protections of the warranties that are offered through that kind of Deed.
This Quitclaim Deed can be used to conveying property from a seller to a purchaser in a variety of situations. For example, when one spouse or relative desires to transfer property to another spouse relative, or name another person as the co-owner of a house or parcel of property that he or she currently owns by him or herself, a quitclaim Deed can be uses. Also, when property is transferred from a person to his or her trust, a quitclaim Deed is often used. Further, this type of Deed is often used to transfer property from spouses that become divorced.
This Deed is a warranty Deed with 'survivorship' rights created. This Deed creates a joint tenancy (sometimes called a survivorship tenancy) between two or more grantees (again, the persons taking title to the property), with the grantees each typically owning an undivided interest in the whole of the property. Upon the death of one of the grantees, his/her interest passes in equal shares to the surviving joint tenant(s) – to accomplish this, an affidavit is usually filed in the county Deed records office to evidence the transfer. Since the property transfers to the other grantee, the deceased grantee's prior interest in the property is not a probate asset, but is included in the estate for state estate tax purposes. Where husband and wife are in title in survivorship, divorce terminates the survivorship tenancy and creates a tenancy in common between ex-spouses - unless the divorce decree specifically provides otherwise.
This Deed is be used most commonly when a person or couple purchases a house from a homeowner and each desires the joint ownership and survivorship features, when a relative desires to name another person as the co-owner of a house or parcel of property that he or she currently owns by him or herself or from one spouse to both spouses. Again, the grantees or purchasers who take title to this property also do so 'with survivorship,' meaning that if one of the purchasers dies the other retains title to the property.
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DISCLAIMER REGARDING LEGAL ADVICE: None of information contained on this web site is intended to constitute legal or other professional advice, and you should not rely solely on the information contained on the site for making legal decisions. When necessary, you should consult with an attorney for specific advice tailored to your situation.
