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A written instrument, which has been signed and delivered, by which one individual, the grantor, conveys title to real property to another individual, the grantee; a conveyance of land, tenements, or hereditaments, from one individual to another.
At Common Law, a deed was an instrument under seal that contained a Covenant or contract delivered by the individual who was to be bound by it to the party to whom it was granted. It is no longer required that such an instrument be sealed.
Transfer of Land
Land can only be transferred from one individual to another in the legally prescribed manner. Historically speaking, a written deed is the instrument used to convey ownership of real property.
A deed is labeled an instrument of conveyance. Under Spanish law, which was in effect at an early date in areas of the western United States, a written deed was not necessary to convey title to land. A verbal grant was sufficient to complete the transaction, provided that it was accompanied by a transfer of possession. Verbal grants of land in Texas have, therefore, been given recognition in U.S. courts.
A deed must describe with reasonable certainty the land that is being conveyed. The conveyance must include operative words of grant; however, technical terms do not need to be used. The grantor must be adequately identified by the conveyance, although it is not required that the grantor's name be specifically mentioned. State laws sometimes require that the deed indicate the residence of the grantor by town, city, county, and state.
In order for title to property to pass, a deed must specify the grantee with sufficient certainty to distinguish that individual from the rest of the world. Some statutes mandate that the deed list the grantee's residence by town, city, county, and state.
In order for a deed to be properly executed, certain acts must be performed to create a valid conveyance. Ordinarily, an essential element of execution is the signature of the grantor in the proper place. It is not necessary, however, that the grantee sign the deed in order for it to take effect as a conveyance. Generally state statutes require that the deed be signed in the presence of witnesses, attesting to the grantor's request.
Proper delivery of a deed from the grantor to the grantee is an essential element of its effectiveness. In addition, the grantor must make some statement or perform some act that implies his or her intention to transfer title. It is insufficient for a grantor to have the mere intention to transfer title, in the absence of further conduct that consummates the purpose.
There is no particular prescribed act, method, or ceremony required for delivery, and it is unnecessary that express words be employed or used in a specified manner. The deed need not be physically delivered to the grantee. It is sufficient to mail it to the grantee. Delivery of the deed by the attorney who has written the instrument for the grantor is also adequate. Unless otherwise provided by statute, a deed becomes effective upon its delivery date. The mere fact that the grantee has physical possession of the deed does not constitute delivery unless it was so intended by the grantor.
A deed must be accepted by the grantee in order for proper transfer of title to land to be accomplished. There are no fixed principles regarding what acts are sufficient to effect acceptance, since the issue is largely dependent upon the party's intent.
Acceptance of a deed need not be made by express words or in writing, absent a contrary statutory provision. A deed is ordinarily accepted when the grantee retains it or obtains a mortgage on the property at issue.
Legal policy mandates that a deed to real property be a matter of public record; therefore, subsequent to delivery and acceptance, a deed must be properly recorded.
The recording process begins when the deed is presented to the clerk's or recorder's office in the county where the property is located. The entire instrument is duplicated, ordinarily by photocopying. The copy is inserted into the current book of official records, which consists exclusively of copies of documents that are maintained and labeled in numerical order.
A properly recorded deed provides constructive notice of its contents, which means that all parties concerned are considered to have notice of the deed whether or not they actually saw it. A majority of jurisdictions place the burden upon home buyers to investigate any suspicious facts concerning the property of which they have actual or constructive notice. If, for example, there is a reference to the property for sale in the records to other deeds, the purchaser might be required to determine whether such instruments give rights in the property to other individuals.
A map referred to in a recorded deed that describes the property conveyed becomes part of the document for identification purposes.
The original copy of a deed is returned to the owner once it has been duplicated, recorded, and filed in the office of the recorder.
A records or clerk's office maintains a set of indexes, in addition to official records, in which information about each deed is recorded, so that upon a search for a document such information can be disclosed. A majority of states have a grantor-grantee index, a set of volumes containing a reference to all documents recorded alphabetically according to the grantor's name. The index lists the name of the grantor first, followed by the name of the grantee, then ordinarily a description of the instrument and sometimes of the property, and ultimately a reference to the volume and page number in the official record where the document has been copied. A grantee-grantor index has the identical information, but it is listed alphabetically according to the grantees' names. A tract index arranges all of the entries based upon the location of the property.
Indexes are frequently classified according to time periods. Therefore separate sets of indexes covering various periods of time may be available.
A significant problem can result in the event that a deed cannot be located through the indexes. This situation could result from a mistake in the recording process, such as indexing the deed under the wrong name. In a number of states, the courts will hold that such a deed was never recorded inasmuch as it was not indexed in such a manner as to provide notice to someone properly conducting a check on the title. In these jurisdictions, all grantees have the duty to return to the recorder's office after filing to protect themselves by checking on the indexing of their deeds. A purchaser who lives in a state with such laws should protect himself or herself either by consulting an attorney or returning to the recorder's office to ascertain that the deed is properly recorded and indexed. Other state statutes provide that a document is considered recorded when it is deposited in the proper office even if it is improperly recorded such that it cannot be located. In these states, there are no practical steps for subsequent buyers to take to circumvent this problem.
Types of Deeds
Three basic types of deeds commonly used are the grant deed, the quitclaim deed, and the warranty deed.
Grant Deed By use of a grant deed, the conveyor says, "I grant (convey, bargain, or sell) the property to you." In a number of jurisdictions a representation that the conveyor actually owns A sample grant deed.the property he or she is transferring is implied from such language.
Quitclaim Deed A quitclaim deed is intended to pass any title, interest, or claim that the grantor has in the property but makes no representation that such title is valid. In effect, this type of deed states that if the grantor actually owns the premises described or any interest therein, it is to be conveyed to the grantee. For this type of deed, some state statutes require a Warranty by the grantor, stating that neither the grantor nor anyone associated with him or her has encumbered the property, and that the grantor will defend the title against any defects that arise under and through him or her, but as to no others.
Warranty Deed In a warranty deed the grantor inserts covenants for title, promising that such title is good and clear. The customary covenants of title include warranty of seisin, Quiet Enjoyment, the right to convey, freedom from encumbrances, and a defense of the title as to all claims.
If a deed is to have any validity, it must be made voluntarily. The test of the capacity of an individual to execute a valid deed is based upon that person's ability to comprehend the consequences of his or her act. If a deed is not made through the conscious act of the grantor, it can be set aside in court. Relevant factors for the determination of whether a particular individual is capable of executing a valid deed are his or her age, and mental and physical condition. Extreme physical weakness resulting from old age or disease is a proper element for consideration in establishing capacity. Mental capacity, however, is the most important factor. If an individual is deemed to be mentally capable of disposing of his or her own property, the deed is ordinarily valid and would withstand objections made to it.
If Fraud is committed by either the grantor or grantee, a deed can be declared invalid. For example, a deed that is a forgery is completely ineffective.
The exercise of Undue Influence also ordinarily serves to invalidate a deed. The test of whether such influence has been exerted turns upon the issue of whether the grantor executed the deed voluntarily. Undue influence is wrongful and serves to confuse the judgment and to control the will of the grantor. Ordinary influence is insufficient to invalidate a deed. Deeds between parties who share a confidential relationship are frequently examined by the courts for undue influence. For example, the courts might place a deed under close scrutiny if the grantor's attorney or physician is named grantee. In addition, if the grantor is a drunkard or uses Drugs and Narcotics to excess, such would be circumstances for consideration when a court determines whether undue influence was exercised upon the grantor.
In a number of jurisdictions, an individual selling a house is required to disclose any material defect known to him or her but not to the purchaser. A failure to disclose gives the buyer the right to cancel the deed, sue for damages, and in some instances, recover for personal injuries incurred as a result of such defect.
Dasso, Jerome J., et al. 1995. Real Estate. 12th ed. Englewood Cliffs, N.J.: Prentice-Hall.
Karvel, George, and Maurice Unger. 1991. Real Estate: Principles and Practices. 9th ed. Cincinnati: South-Western.