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Deeds

Real Estate I

Mike Brigner, J.D.

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Some Basic Questions

What is the difference between TITLE to property & DEED to property? A recorded deed & an unrecorded deed?

How many ways can interests in real estate be transferred? Deed - Mortgage - Lien – Assessment - Lease Adverse Possession - Dower - Bankruptcy Easement by Affidavit or Prescription (use)

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Basic Deed Requirements

Definition: A deed is a legal instrument for the conveyance of real property

All deeds must be in writing (Statute of Frauds)

Grantor = transferor

Grantee = transferee

Grantor competent

Deed

My Red House

To Sue Grantee

Signed,

Myrtle Grantor

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Basic Deed Requirements

Grantor must state intent to transfer real estate, by using words of conveyance – “grant, convey, assign, give”

Ohio uses “grant”

Legal description of the property

Consideration - but amount not necessary

Deed

My Red House

To Sue Grantee

Signed,

Myrtle Grantor

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Basic Deed Requirements

What interest exactly is granted by Grantor?

What warranties are given by Grantor?

How is property to be owned by Grantees?

Properly executed, as follows:

Deed

My Red House

To Sue Grantee

Signed,

Myrtle Grantor

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Basic Deed Requirements

Signed by the grantor

Signature notarized

Witnessed - TWO witnesses required until 2002. Now, NO witnesses required.

Delivery by grantor

Acceptance by grantee

Deed

My Red House

To Sue Grantee

Signed,

Myrtle Grantor

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Interest (or “Estate”) Granted

Full ownership forever w/o conditions = Deed in fee simple absolute Unless deed says otherwise, full ownership

Full ownership with conditions “No development”, or “Lake to be maintained”

Life estate – Can be for life of Grantor, life of Grantee, or life of a third party

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What Warranties Given by Grantor?

General Warranties

Limited Warranties

Fiduciary Warranties

No Warranties (Quitclaim)

G

L

F

Q

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How Will Property Be Owned by Grantee?

Individually – sole ownership

Tenants in Common – each grantee owns a share, & can sell or bequeath that share

Joint with Rights of Survivorship (J&S) – each grantee owns all & if one dies, his interest passes automatically to the survivor(s)

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Basic types of deeds

General Warranty

Deed

Limited Warranty

Deed

Fiduciary Deed

G L F

Each type has its own section of Ohio Revised Code, giving exact deed language required

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Basic types of deeds

Survivorship Deed

(aka “J & S”)

Quitclaim Deed

J&S Q

Each type has its own section of Ohio Revised Code, giving exact deed language required

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General Warranty Deed

Grantor covenants against all claimsCovenant = a promise that a fact is true or that an event will take place

R.C. 5302.05 defines general warranty deedR.C. 5302.06 defines covenantshttp://www.legislature.state.oh.us/laws.cfm http://dictionary.law.com/

G

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Covenants in General Warranty Deed

By using deed words “with General Warranty Covenants”, Grantor gives: 1. covenant of seisin 2. covenant of right to convey 3. covenant against encumbrances 4. covenant of further assurances 5. covenants of quiet enjoyment and

warranty

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Limited Warranty Deed

Grantor covenants only against the lawful claims of people claiming by, through or under the grantor

R.C. 5302.07 Limited warranty deed

R.C. 5302.08 Limited covenants

L

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Covenants in Limited Warranty Deed

By using deed words “with Limited Warranty Covenants”, Grantor gives: 1. Covenant against encumbrances

created by the grantor only If grantor had put (for example) an

easement on the land, grantor liable If someone prior to the grantor had placed

an easement on the property, grantor not liable

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Fiduciary Deed

Used when executor, administrator, trustee, guardian, or other fiduciary transfers real property

R.C. 5302.09 Fiduciary Deed

R.C. 5302.10 Fiduciary Covenants

F

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Covenants in Fiduciary Deed

By using deed words “with Fiduciary Covenants”, Grantor warrants: 1. that the fiduciary was properly

appointed 2. that fiduciary has legal authority to

sell the property 3. that fiduciary has complied with all

other legal aspects of sale 4. that fiduciary has done nothing to

encumber the land

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Quitclaim deed

Transfers only the interest the grantor has in the land and not the land itself

No covenants or warranties

Used as deed in lieu of foreclosure

Clears up dower problems

R.C. 5302.11 Quitclaim Deed Form

Q

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Joint & Survivorship Deed

Grantees acquire joint ownership of property with right of survivorship

If one dies, decedent’s interest in property passes automatically to survivor No deed required at death, but Affidavit as to death, & including legal

description, must be filed at Recorder’s

R.C. 5302.17 Survivorship deed form

J&S

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Joint & Survivorship Deed

Remember that “J&S” is just the way the Grantees choose to own the property

J&S deed form says Grantees take property “for their joint lives, remainder to the survivor of them,”

(J&S deed form also says Grantors give with General Warranty Covenants)

J&S language can be added to any other type of deed, G, L, F, Q

J&S

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Distinguish

Warranties are what GRANTOR gives

Form of ownership is what GRANTEE gets

So we can have: Gen. Warranty Deed that includes J&S rights Fiduciary Deed that includes J&S rights

OR Ltd. Warranty Deed to individual Ltd. Warranty Deed to Tenants in Common

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Preparation of an Ohio Deed

Accuracy in all details!“Grantor” Grantor’s marital status REQUIRED If name has changed since acquiring, state

“fka” – further known as If corporation, partnership, state status

“of Montgomery County, Ohio”“for valuable consideration paid” – amount not needed

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Preparation of an Ohio Deed

“grants” shows intent to convey real estateWarranty clause, such as “with general warranty covenants” By using correct Ohio form, shows what

warranties grantor intends to be obligated to Or, if Quitclaim, intent to give no warranties

Any limitations or conditions on type of estate being transferred, such as a life estate“Grantee” name. Marital status not required

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Preparation of an Ohio Deed

How property is to be owned by grantees Individually (no special words needed) “As Tenants in Common” “for their joint lives, remainder to the

survivor of them,”

“Whose tax mailing address is. . . .” Deed cannot be recorded without information

as to where to send tax bills

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Preparation of a Deed

Property Description Metes & bounds description, or Lot number (Shortcut. Somewhere a metes &

bounds description is recorded for every lot) Every lot number includes words & numbers

Prior Instrument Reference – mandatory The Volume/Page or Microfiche # “of the Deed

Records of Montgomery County, Ohio” This tells how grantor obtained ownership

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Preparation of a Deed

Name of spouse, if waiving dower, with waiver language

Execution part of the deed Executed this ___ day of __, 2008 Each grantor’s signature, name typed beneath Spouse’s signature, if waiving dower rights Acknowledgment – notary clause No witnesses now required in Ohio This deed prepared by (attorney or grantor)

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Deeds

Concluded Thank you

Mike Brigner