Deed


A deed Must Fulfill Several Requirements:

A deed is a signed and usually sealed legal instrument in writing used to grant a right. Deeds have historically been part of the broader category of instruments under seal, requiring only the affixing of a common seal to render them valid. Today, however,

deeds are instruments in solemn form which require the author's signature and a number of attesting witnesses. 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. A deed is not like a simple contract, however, in that it is enforceable without consideration, has a liability limitation period of double that of a contract, and allows for a third party beneficiary to enforce an undertaking in the deed, thereby overcoming the doctrine of privity. In its narrowest sense, a deed is any formal document that transfers right of ownership (title) to an asset from one person to another, often using a description of its "metes and bounds", e.g., conveyances, transfers, mortgages, charges, or leases. However, by the general definition, powers of attorney, commissions, patents, and even diplomas conferring academic degrees are also deeds.

Traditionally and under common law, to be valid and enforceable, a deed must fulfill several requirements:

It must state on its face it is a deed, using wording like "This Deed..." or "executed as a deed". 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 clause indicating the gift. The grantor must have the legal ability to grant the thing or privilege. The grantee must have the legal capacity to receive it. It must be executed by the grantor in presence of the prescribed number of attesting witnesses; this is known as being in solemn form. A seal must be affixed to it. Originally, signatures were optional, but most jurisdictions made seals outdated, and now the grantor and witnesses signatures are primary. It must be delivered to and accepted by the grantee. It should be properly acknowledged before a competent officer, most often a notary public. Conditions attached to the acceptance of a deed are known as covenants.

A deed is a signed and usually sealed legal instrument in writing used to grant a right. Deeds have historically been part of the broader category of instruments under seal, requiring only the affixing of a common seal to render them valid. Today, however, deeds are instruments in solemn form which require the author's signature and a number of attesting witnesses. 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. A deed is not like a simple contract, however, in that it is enforceable without consideration, has a liability limitation period of double that of a contract, and allows for a third party beneficiary to enforce an undertaking in the deed, thereby overcoming the doctrine of privity. In its narrowest sense, a deed is any formal document that transfers right of ownership (title) to an asset from one person to another, often using a description of its "metes and bounds", e.g., conveyances, transfers, mortgages, charges, or leases. However, by the general definition, powers of attorney, commissions, patents, and even diplomas conferring academic degrees are also deeds.

Traditionally and under common law, to be valid and enforceable, a deed must fulfill several requirements:

  • It must state on its face it is a deed, using wording like "This Deed..." or "executed as a deed".
  • 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 clause indicating the gift.
  • The grantor must have the legal ability to grant the thing or privilege.
  • The grantee must have the legal capacity to receive it.
  • It must be executed by the grantor in presence of the prescribed number of attesting witnesses; this is known as being in solemn form.
  • A seal must be affixed to it. Originally, signatures were optional, but most jurisdictions made seals outdated, and now the grantor and witnesses signatures are primary.
  • It must be delivered to and accepted by the grantee.
  • It should be properly acknowledged before a competent officer, most often a notary public.
Conditions attached to the acceptance of a deed are known as covenants.

Types

General 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 alternative to a mortgage. A trust deed is 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.

Parts

The main clauses of a warranty deed conveyancing land are:
  • Premises - date, names and descriptions of parties, recitals, consideration, grant, full description of the thing granted, and any exceptions
  • Habendum - clause indicating the estate or interest to be taken by the grantee
  • Tenendum - "to have and to hold", formerly referring to the tenure by which the estate granted was to be held, though now completely symbolic
  • Redendum - reserves something to grantor out of thing granted, such as a rent, under the formula "yielding and paying".
  • Conditions
  • Warranty - grantor warrants the title to the grantee
    • general: when the warrant is against all persons
    • special: when it is only against the grantor, his heirs and those claiming under him
  • Covenants - binding limitations or promises
  • Conclusion - execution and date

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).

Pardon as deed

In the United States of America, a pardon of the President was once 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 deed

In the United Kingdom, England and Wales operate a 'property register'. Title deeds are documents showing ownership, as well as rights, obligations, or mortgages on the property. Since around 2000, compulsory registration has been required for all properties mortgaged or transferred. The details of rights, obligations, and covenants referred to in deeds will be transferred to the register, a contract describing the property ownership. At common law, ownership was proven via an unbroken chain of title deeds. The Torrens title system is an alternative way of proving ownership. First introduced in South Australia in 1858 by Sir Robert Torrens and adopted later by the other Australian states and other countries, ownership under Torrens title is proven by possession of a certificate of title and the corresponding entry in the property register. This system removes risks associated with unregistered deeds and fraudulent or otherwise incorrect transactions. It is much easier and cheaper to administer, lowering transaction costs. Some Australian properties are still conveyed using a chain of title deeds - usually properties that have been owned by the same family since the nineteenth century - and these are often referred to as 'Old System' deeds.

Grant deed

A grant deed is used in some states and jurisdictions for the sale or other transfer of real property from one person or entity to another person or entity. Each party transferring an interest in the property, or "grantor", is required to sign it. Then the document must be acknowledged before a notary public, sometimes called notarized, or other official authorized by law to administer oaths. The notary public or other official then places a seal and marks the document accordingly to show that it was properly signed and acknowledged. The reason the document must be notarized is to provide evidence that the document is genuine as transaction documents are sometimes forged. Some jurisdictions use the warranty deed to transfer real property instead of the grant deed. The quitclaim deed is also sometimes used, although this document is most often used to disclaim any interest in a property rather than selling a property that one owns.

The types of deeds that are now used to transfer real property are a relatively modern invention. Previously, the grantor transferred the property to the buyer, called the "grantee", by performing some commonly recognized deed, such as picking up a handful of soil of the property to be transferred, handing it to the buyer, and reciting legally prescribed words that acknowledged the transfer. This was called livery of seisen. Over time, and particularly with the development of modern technology that permits government offices to keep accurate copies of documents, the physical deed that was formerly performed in order to transfer a property was replaced by the paper deed, also known as a deed poll, that is now commonly used.

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