Ask The Lawyer Radio Show with Attorney Brian Figeroux

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Ask the Lawyer with Brian Figeroux, Esq. You have questions, we have answers. Do you need to do a deed transfer? Our attorneys would be happy to help. We can assist you with any of the following:

1. Add a spouse, family member or partner to a deed
2. Remove an individual from a deed
3. Transfer a deed from an individual to a Corporation, LLC or Trust
4. Advise you on whether a deed transfer would violate the terms of your mortgage
5. Advise you on the best way to take title, that is, tenants in common or joint tenants with right of survivorship and tenants by the entirety
6. Advise you on the best type of deed to use (there are many types of deeds)

We bring you the latest updates on the law and community issues.

A deed is a legal document that specifies who the owner of real estate is. Please note that in a coop, there is no “deed.” Generally, only condos and houses have a deed. A deed is the document that transfers ownership of real estate. It will identify the buyer (grantee) and seller (grantor), provide a legal description of the property, and be signed by the person transferring the property. The seller’s signature must be notarized. There are two types of deeds commonly used in real estate transactions.

The most common form of deed is a warranty deed (sometimes called a “grant deed”). A warranty deed transfers ownership and also explicitly promises (warrants) that the grantor/seller holds good title to the property. The other common form of deed is the quitclaim deed. A quitclaim transfers any ownership interest the grantor/seller has in the property but makes no promises or guarantees about what that interest is or that title is good. 

Put another way, a warranty deed says “I promise that I own the property I am giving you and the title to it is good,” while a quitclaim deed says “I’m giving you whatever interest I have in this property, but I’m not making any promises about it my title might not be good and I might not even own the property but whatever I have is now yours.” Quitclaim deeds are most commonly used to clear up title problems, to transfer property between spouses after a divorce, or in informal transactions between friends or family members.

The Different Forms of Title Ownership are: Joint & Survivor, Tenants by Entirety and Tenancy in Common

Where two or more people are purchasing property together, the real estate lawyer must also determine how they will take title, commonly asking whether they wish to hold the property as joint tenants or as tenants in common. This decision makes no difference in most of the rights and duties of the co-owners but makes a great difference on how the land is treated upon the death of a co-owner. (Note: the word “tenant” in the terms “joint tenant” or “tenant in common” is an old English law term that in this context merely means “owner.”)

A joint tenancy involves the right of survivorship. This means that when one joint tenant dies, that owner’s share passes automatically to the surviving joint tenants. This happens whether or not the deceased owner had a will; in fact, it happens even if the deceased owner’s will attempts to leave his interest in the land to someone else. The joint tenancy is a popular form of co-ownership between husband and wife, because there is no need for a will or probate of the joint tenancy land, which can save significant time and expense. A small number of states also recognize a “tenancy by the entirety,” which is a form of joint tenancy (with the right of survivorship) that can only be created between husband and wife.

By contrast, tenancy in common is a form of shared ownership where two or more persons own land without the right of survivorship. Thus, when a tenant in common dies, the interest of the deceased owner passes to his or her heirs or the persons named in his or her will.

Recording the Deed

The final (and extremely important) step in the conveyancing process is recording the deed, mortgage, or other instrument in the county where the property is located. The name of the county office involved with recording real estate instruments varies from state to state; it is commonly called the county recorder’s office, land registry office, registrar of titles or register of deeds. Recording is extremely important as the owner’s interests are not fully protected unless and until the document is recorded. And the sequence in which deeds and other documents are recorded also determines the priority of various claims against the property.