deed

deed

[deed]
deed, in law, written document that is signed and delivered by which one person conveys land or other realty (see property) to another. A deed may assure the extent of the conveying party's ownership or, if the party is uncertain of the precise extent, he issues a quitclaim (i.e., a sale), without description, of whatever he may own. The formalities with which a deed is invested are designed to make the instrument conclusive evidence of the transaction described and to eliminate the need for further proof. In all states of the United States deeds must be formally delivered and their receipt formally attested. It is possible to deposit a deed with a third party or a court for delivery to the purchaser; this is termed a delivery in escrow. Most states also require that deeds be acknowledged by a duly authorized commissioner and that a copy be deposited with the clerk of the county where the realty is situated. If the formalities are not observed, a deed (or the contract purporting to convey realty) is some, but not conclusive, evidence of the conveyance.

A deed is a legal instrument used to grant a right. Deeds are part of the broader category of documents under seal. Deeds can be described as contract-like, as they require the mutual agreement of more than one person. Deeds can therefore be distinguished from covenants, which being also under seal, are unilateral promises. The deed is best known as the method of transferring title to real estate from one person to another, often using a description of its "metes and bounds." However, by the general definition, powers of attorney, commissions, patents, and even diplomas conferring academic degrees are also deeds.

Historically at common law, for an instrument to be a valid deed it needed six things:

  • It must indicate that the instrument itself conveys some privilege or thing to someone. This is indicated by using the word hereby or the phrase by these presents in the sentence indicating the gift.
  • The grantor must have the legal ability to grant the thing or privilege.
  • The person receiving the privilege or thing must have the legal capacity to receive it.
  • A seal must be affixed to it. Most jurisdictions have eliminated this requirement and replaced it with the signature of the grantor with some number of signing witnesses. Most jurisdictions also require that the deed be acknowledged before a notary public or a civil law notary.
  • It must be delivered to and accepted by the recipient.

Conditions attached to the acceptance of a deed are known as covenants.

Types of deeds

General warranty and special warranty

Main article Warranty deed

In the transfer of real estate, a deed conveys ownership from the old owner (the grantor) to the new owner (the grantee), and can include various warranties. The precise name of these warranties differ by jurisdiction. However the basic difference between them is the degree to which the grantor warrants the title. The grantor may give a general warranty of title against any claims, or the warranty may be limited only to claims which occurred after the grantor obtained the real estate. The latter type of deed is usually known as a special warranty deed. While a general warranty deed is normally used for residential real estate sales and transfers, special warranty deeds are more commonly used in commercial transactions.

Bargain and sale deed

Main article Bargain and sale deed

A third type of deed, known as a bargain and sale deed, implies that the grantor has the right to convey title but makes no warranties against encumbrances. This type of deed is most commonly used by court officials or fiduciaries that hold the property by force of law rather than title, such as properties seized for unpaid taxes and sold at sheriff's sale, or an Executor.

Quitclaim deed

Main article Quitclaim deed

A so-called quitclaim deed is (in most states) actually not a deed at all--it is actually an estoppel disclaiming rights of the person signing it to property.

Deed of trust

In some jurisdictions, a deed of trust is used as an equivalent to a mortgage. A trust deed isn’t like the other types of deeds; it’s not used to transfer property directly. It is commonly used in some states (California, for example) to transfer title to land to a “trustee,” usually a trust or title company, which holds the title as security ("in escrow") for a loan. When the loan is paid off, title is transferred to the borrower by recording a release of the obligation and the trustee's contingent ownership is extinguished. Otherwise (upon default), the trustee will liquidate the property (with a new deed) and offset the lender's loss with the proceeds.

Recording

Usually the transfer of ownership of real estate is registered at a cadastre in the United Kingdom. In most parts of the United States, deeds must be submitted to the Recorder of deeds, who acts as a cadastre, to be registered. An unrecorded deed may be valid proof of ownership between the parties, but may have no effect upon third-party claims until disclosed or recorded. A local statute may prescribe a period beyond which unrecorded deeds become void as to third-parties, at least as to intervening acts.

Joint ownership

Ownership transfer may also be crafted within deeds to pass by demise, as where a property is held in concurrent estate such as "joint tenants with right of survivorship" (JTWROS), "tenants by the entirety", or as a life estate. In each case, the title to the property immediately and automatically vests in the named survivor(s) upon the death of the other tenant(s).

Pardons as deeds

In the United States of America, a pardon of the President was at one time considered to be a deed and thus needed to be accepted by the recipient. This made it impossible to grant a pardon posthumously. However, in the case of Henry Ossian Flipper, this view was altered when President Bill Clinton pardoned him in 1999.

Title Deeds

In the United Kingdom, England and Wales operate a 'property register'. Title deeds are documents evidencing ownership and extent of a property, also sets out any rights or obligations that affect the property, also show whether there are any mortgages on the property. In more modern times (since 2000) compulsory registration has come into effect; all properties mortgaged or transferred since 2000 must be registered. The details of rights, obligations, covenants and the like referred to in deeds will be transferred to the register. Basically, it is a contract detailing the property ownership.

See also

References

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