How Does a Silent Deed Work?

Close-up of house deeds and keys with model house beside it

Protecting the title to your property may take court action, depending on the challenge to your ownership rights. Silent deeds, known as quiet title actions, are used to "quiet" opposition to title rights on a property. If you are not entirely sure that your title is clear of all known or unknown encumbrances or challenges, filing a quiet title action is how to proceed in many cases.

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Silencing Ownership Claims

If another person claims to have an ownership interest in your property, you may need to file a quiet title action to refute his claim and clear any question regarding who owns your property. For example, if there is not an unbroken record of ownership due to the lack of deed filings or the death of previous title holders, you can file a quiet title action to remove any doubt of previous encumbrances.

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Removing Clouds on Title

Without a clear title, you may not be able to sell or refinance your home, because new owners or lien holders may have their rights to the property challenged by another party. Sometimes a quiet title action is a procedural process only. For example, if you paid off the loan to your home, the mortgage company may have failed to clear your title of the lien. If the lender is no longer in business or unable to be contacted, you may file a quiet title action to remove that cloud on your title.

Filing a Quiet Title Action

A quiet title action is a lawsuit filed in court against anyone who is threatening ownership of your property but is not owed any ownership rights. Sometimes the defendant is an unknown person or entity because there is an inconsistency in the history of the title that must be cleared. If there is no party to serve in the quiet title filing, an announcement is placed in the paper, essentially notifying all local area occupants of your intentions. If no one steps forward as a defendant to your claim, your title will be cleared of any disputes that may arise against it from the past.

MERS' Role in Tracking Lenders

The Mortgage Electronic Registration Systems, or MERS, was created by mortgage lenders to track changes of lien holders and servicing agencies as loans are sold throughout the industry. MERS helps keep track of which company owns certain mortgages attached to particular properties and who services them by collecting the mortgage payments for the lenders. It eliminates the need for voluminous paperwork as loans change hands, but it does not file notes or deeds. When there is a line of numerous lenders and servicing agencies registered in MERS, it may not be possible to find the defendant to a quiet title action. Therefore, in foreclosures initiated by MERS, you may not know which company physically possesses the deed, and, if a quiet title action is filed, a defendant may not be present to lay a claim to your property.

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Florida Today

Florida Today

Buying or selling a home? Here's how to avoid common but nightmare-inducing title defects

Posted: January 13, 2024 | Last updated: January 13, 2024

Title defects are every buyer and seller’s nightmare. Despite the best efforts of previous owners and closing agents, there are several reasons why a title defect can still arise. While some are bigger and more costly to resolve, the headaches and heartaches these unpleasant surprises cause when they are discovered are undeniable.

Whether you are buying or selling property, consider working with a knowledgeable real estate attorney to help you spot and resolve issues before closing.

Errors in public records

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Despite the world turning digital, human error still plays a part in society. When it comes to homeownership, a seemingly small error or oversight can have devastating effects. Clerical or filing errors of recorded documents such as a deed, mortgage, liens, or satisfactions can cause undue financial and emotional strain to resolve.

Unknown or unpaid liens or encumbrances

Most people or institutions placing a lien on a property are diligent about recording the necessary documents. Whether a mortgage or construction lien, the financial claim placed on a property is usually a large enough incentive to follow through on confirming a successful recording. Every once in a while though, the documents do not get recorded and remain unknown or undiscoverable when conducting a title search. Encumbrances such as easements or rights-of-way can be forgotten more easily, since there is typically no financial value. That said, they can still greatly affect how you use and enjoy your property. Regardless of whether the lien or easement is a result of an agreement that you entered into, the implications of such an agreement can have devastating affects on you as the current homeowner. It is important to make sure the outstanding balances of any liens are paid in full, and the lien is properly released or satisfied, otherwise the new owners may find themselves responsible for the outstanding amount!

Incorrect deeds

Deeds are the vital tool to transfer ownership. An unrecorded or improperly prepared deed can have costly consequences. If a deed goes unrecorded, it is nearly impossible to track down or find through a title search. It may take years before the holder of the deed comes forward to claim the land. If you are the current owner but not the individual who signed the unknown deed, your entire claim to the property could be brought under question. If a deed is improperly prepared or executed, the issue could go undetected for several sales. Correcting the issue may be as easy as tracking down the old owner and having them re-execute a corrected deed, or it could result in costly litigation attorney’s bills.

More: Real estate investment can be rewarding: Don't forget about capital gains come sale time

More: What is FIRPTA — and why does it matter if I'm buying real estate from a foreign seller?

Properties requiring probate

Properties subject to probate are a nightmare for realtors, buyers, and sellers. Sellers often want to dispose of the property as quickly as possible, Realtors often mirror this eagerness, and all parties rarely understand the probate process. This misinformation can lead to improper parties signing contracts or closing documents, individual timelines moving faster than those of the Courts, properties being prematurely listed on the market, and parties unable to fulfil their contractual obligations. Realtors should be conscious of the realities of listing or showing clients a property in probate, and all parties should consider contacting an attorney who handles both real estate and probate, to ensure the process is carried out correctly. For properties in probate, all parties are at the mercy of the courts, and no amount of money can change their timeline or ruling.

Forgeries and fraud

Fraud and forgeries are on the rise in Florida. Forged deeds and mortgages are one of the biggest concerns when reviewing a title search report. While many counties are imposing regulations and penalties to deter fraudsters, it is not enough. In Brevard County, the most popular scam is forged deeds on vacant land or properties owned by out of state/country owners. Often times the notary and witnesses are in on the scam, making it even trickier to prevent. Fraudsters typically execute a Quit Claim Deed, then quickly turn around and list the property below market value to generate a faster sale. Buyer and Seller impersonation often goes hand-in-hand with this issue, as well as with wire fraud. Whether you are buying or selling property, you should always call the office of the person providing or requesting wire instructions, to verify the information you sent or received is correct. In addition to losing money on a fraudulent transaction, properties sold through seller impersonated deals risk being returned to their rightful owners; this could jeopardize your ownership of the property.

Boundary/survey disputes

Surveys are an extremely helpful tool when it comes to identifying property lines, easements, and other important markers. What most people do not understand is that a survey is subjective and only contains information the surveyor can readily obtain. In essence, it is a reflection of the surveyor’s professional opinion. Old surveys or surveys done by two different companies can be very different. These differences can cause issues to arise if they differ from that of a neighbor. Certain issues may be easily resolved, such as a trampoline or above-ground pool that encroaches on the property line, while others can be far more costly, such as a garage, patio or in-ground pool that encroaches on an easement or adjacent property line.

Outstanding taxes

Similar to lien payoffs, improper or partial payment of taxes can have financial implications for new owners. If taxes are not paid in full and on time, the county may register the property for a tax sale, at which point an outside party has the ability to pay the taxes on your behalf and register an interest in the property. If taxes remain unpaid for a period of 3 years, the county may offer the property at a tax deed sale, where it can be sold at auction, without requiring your consent.

Despite the best efforts of previous owners and closing agents, there are several reasons why a title defect may still arise. Title defects are every buyer and seller’s nightmare, no matter the scale of the problem. Whether you are buying or selling property, working with a knowledgeable real estate attorney can help you spot and resolve issues before closing.

Stephen J. Lacey, JD, LLM, is a member of the law firm Lacey Lyons Rezanka. His practice areas focus on estate planning and probate.

This article originally appeared on Florida Today: Buying or selling a home? Here's how to avoid common but nightmare-inducing title defects

Attorney Stephen J. Lacey: "Title defects are every buyer and seller’s nightmare. Despite the best efforts of previous owners and closing agents, there are several reasons why a title defect can still arise."

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What Is a Deed?

Understanding a deed, types of deeds, content requirements of a deed, deed limitations, deed vs. title.

  • Guide to Microeconomics

Deed: Legal Definition, Types, Requirements, Vs. Title

Daniel Liberto is a journalist with over 10 years of experience working with publications such as the Financial Times, The Independent, and Investors Chronicle.

what is a ghost title deed

A deed is a signed legal document that transfers ownership of an asset to a new owner. Deeds are most commonly used to transfer ownership of property or vehicles between two parties.

The purpose of a deed is to transfer a title, the legal ownership of a property or asset, from one person or company to another.

A deed to real property must be properly filed with the local government for its owner to be able to sell it, refinance it, or obtain a line of credit on it. This task is usually undertaken by the property buyer's attorney or title insurance company.

Key Takeaways

  • A deed is a signed legal document that grants its holder ownership to an asset but may set a number of conditions on the transfer of the title.
  • The deed is not a title. It is the vehicle for transferring a title.
  • If the deed is not written, notarized, and entered into the public record, it could be open to legal challenges and delays.
  • There are three main deed types: the grant deed, the warranty deed, and the quitclaim deed.

A deed is a binding document in a court of law only after it is filed in the public record by a local government official who is tasked with maintaining documents. The signing of a deed must be notarized . Some states also require witnesses.

If a deed is not written, notarized, and entered into the public record, it may be referred to as an imperfect deed. The document and the transfer of title are valid, but the related paperwork may need to be on file with the register of deeds to avoid a delay if there is a legal challenge.

Other types of documents that confer privileges comparable to deeds include  commissions , academic degrees, licenses to practice,  patents , and  powers of attorney .

The register of deeds is available for public viewing and is usually maintained at the town, county, or state level.

There are many different types of deeds, each of which serves a different purpose. They are generally categorized in the following ways:

  • A grant deed contains two guarantees: that the asset has not been sold to someone else and that it is not burdened by any encumbrances that have not been disclosed, such as outstanding  liens or mortgages . That is, the deed is "free and clear" of defects. Grant deeds do not necessarily need to be recorded or notarized, but it is generally in the best interests of the grantee to ensure that this is done.
  • A warranty deed , sometimes called a special warranty deed, declares that the grantor has not caused any title defect while owning the property. It provides the greatest amount of protection to its holder. A warranty deed offers the same guarantees as a grant deed plus a promise that the grantor will warrant and defend the title against any claims.
  • A quitclaim deed releases a person's interest in an asset without stating the nature of their interest or rights. The grantor could be a legal owner or not, and makes no promises. Quitclaims are often used in divorce settlements and in transfers of property between family members.

In some states, a mortgage for a house entails the creation of a deed of trust . A trustee holds the deed of trust until the loan for the property is paid in full.

The exact requirements vary from state to state, but they are pretty basic. In California, for instance, the property being transferred must be described adequately. The grantor (the person transferring title to the property) and the grantee (the person accepting title) must be named.

The deed may be void if the grantor is found to be not mentally competent, was signed by a minor or, of course, was forged.

A deed does not have to be filed with the local government in order to be valid, but this routine step can avoid trouble and delay down the road if the deed is embroiled in a legal case or the property owner wants to sell the property.

A transfer of ownership can get muddled even when a perfected deed has been filed. There could be a  cloud on title  for a variety of reasons. False deeds or deeds that contain errors can be filed that require clearing up with the record keepers.

There also can be probate issues. For example, if the owner of a property passes away without defining in a will who should gain control of some property, the heirs might challenge one another in court for the property title.

Moreover, conferring a title through a deed does not necessarily grant the new owners the right to use the property in any way they choose. A deed may include restrictions on the owner's actions, such as the rules imposed by a homeowner's association.

An individual who signs a deed for a parcel of land has a legal right to possess that land, for example, but may not be able to build a shooting range on it because of the potential risks it would pose. In other cases, the holder of the title to a piece of property may own the land but be unable to develop it for environmental reasons.

A deed and a title are not the same but they are inextricably linked:

  • A deed is a document that transfers the title to property from one owner to another. It describes the property being transferred and names all parties to the transaction. It is signed by all parties and is filed on the official record. All U.S. states require that deeds to real property be filed with the government, although the details vary.
  • The title may not even exist in any physical form. It's the concept of property ownership that gives its owner the rights of possession and use. The deed is the proof of that ownership.

Here are the answers to some commonly asked questions about deeds.

Does a Deed Mean You Own the House?

A deed is proof that you are the owner of the house (or other property). You hold the title to that property.

What Is a Deed of Trust?

A deed of trust is a real estate transaction that involves a lender such as a bank as well as a buyer and a seller. It inserts a fourth party into the transaction: a trustee, usually a title company, which receives an interest in the property. If the buyer defaults on the payments, the trustee can seize the property and sell it.

The deed of trust process is a substitute for a mortgage agreement and is used in many states. From the buyer's viewpoint, it makes no difference. You pay your mortgage or you lose the house.

What Is a Deed in Lieu?

The term, in full, is "a deed in lieu of foreclosure." A homeowner facing the loss of the property for nonpayment of a mortgage may choose to just transfer the deed to the house to the lender rather than face the repercussions of foreclosure proceedings.

In a deed in lieu agreement, the lender agrees to accept the property and release the borrower from any other payments of the debt.

How Long Is a Deed Valid For?

It depends.

A deed of trust, as noted above, works the same as a mortgage and has a time limit in which the money loaned for the property must be repaid in full. At that time, the trustee should take care of the paperwork to replace it with another deed that transfers the title to the owner.

Unless a deed has an expiration date on it, it doesn't expire.

Nolo. " Double Check That Your Home Deed Was Recorded - Or Else! " Accessed Aug. 8, 2021.

Davis Upton & Palumbo. " What are the Three Most Common Types of Deeds? " Accessed Aug. 8, 2021.

Viva Escrow! " What makes a Deed good and valid? " Accessed Aug. 8, 2021.

Homelight. " Property Deed vs. Title: Don't Confuse the Two When You Sell Your House ." Accessed Aug. 8, 2021.

Legal Information Institute. " Deed of Trust ." Accessed Aug. 8, 2021.

Companies Inc. " Mortgage States and Deed of Trust States ." Accessed Aug. 8, 2021.

Rocket Mortgage. " Deed In Lieu Of Foreclosure: What To Know ." Accessed Aug. 8, 2021.

Pocket Sense. " Does a Deed of Trust Expire? " Accessed Aug. 8, 2021.

what is a ghost title deed

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River Valley Title Group

Title insurance vanquishes ghosts of real estate: the top 5 most common title problems

by Ryan Olson | Oct 28, 2019 | Blog

what is a ghost title deed

When fearing the unknown is a good thing

Often referred to as the “fundamental fear,” there’s one time you should always act on your fear of the unknown, and that’s when you’re buying real estate. Enter title insurance. A solid title insurance company will search in the closet and under the bed to find any ghosts threatening your life’s biggest investment: your home.

Before you say, “Nah, that won’t happen to me,” consider this: 25 percent of all residential property transactions require “curative action” before closing, according to the American Land Title Association. That’s one in four people potentially and severely compromising their investment if they forgo title insurance.

Title insurance identifies defects and provides curative action

Title insurance serves to unearth the unknown, conquer the ghosts (more commonly called “defects”) that are discovered and protect you from any new specters that may come later. Any defect in the title to the property means remnants of the past may come forward and challenge whether the seller had the right to sell the land. Here are the five most common defects you’re likely to encounter.

Errors in public records.

Everybody makes mistakes, including all the people who have in the past processed documents related to your property. Clerical and filing errors, simple as they may be, can affect the deed or survey of your property. And that can be expensive to correct if not cured before closing.

Illegal deeds.

Deeds are the instrument that conveys ownership of real estate. That means that if anyone in the history of the property ownership forged the deed, signed it without understanding what they were signing, signed it as a minor or if any fictitious persons are among past owners, the deed is void.

Unknown encumbrances.

An encumbrance is any lien, easement, encroachments or deed restriction that limits an owner’s ability to transfer a property title.

  • If any prior owner (we’re talking land here, too, not just homes themselves) failed to repay any loans, their lenders might have filed liens against the property, giving them possession rights until the debt is repaid.
  • Several types of entities may have easement rights that limit how you enjoy your property. They could include utilities that need to be able to access lines on your property or the neighbor behind you that has as an easement to drive through your property to get to theirs.
  • Sometimes neighbors may knowingly or unwittingly encroach on your property. It could be something like a fence placed a few inches within your property line or a driveway that’s partially on your parcel.
  • Deed restrictions. Deed restrictions can be written in a way that lasts forever, from one owner to the next and the next. Deed restrictions often dictate how the land may be used. For example, a deed restriction can limit your ability to break off and sell smaller parcels of your land, or it can limit your ability to ever have a business on the property.

Survey disputes.

More than one version of your property survey may exist out there. In fact, you may find a few, all with differing boundaries, leaving your ownership open to dispute by another party.

Unknown wills and heirs.

Here’s where the ghosts can truly be haunting. Past owners may have bequeathed the property to long-lost heirs. And those long-lost heirs, or their posterity, may show up wanting to collect what is rightfully theirs.

Title insurance agents are the ghostbusters of the real estate industry

Whatever ghosts of the past may threaten your property ownership, title insurance is the best ghostbuster around. Before you close on any property, now or well into the future, be sure to partner with a reputable title company. Experienced title agents on their worst day are better than any medium on their best for clearing real estate ghosts from the past.

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Tangled Title: Frequently Asked Questions

1. What is a tangled title? 

Having the title to your home means that your name is on the deed. “Tangled title” refers to the situation when you live in a home you own (or have a right to own) but your name is not on the deed.  

Most often, titles get tangled because the person whose name is on the deed passes away and that person’s relatives continue to live in the home without putting the deed in their name.  At that point, the surviving relatives have a tangled title because they inherited an interest in the home, but their name is not on the deed. However, there are other ways for titles to get tangled. 

2. Why does it matter if my title is tangled? 

Tangled titles leave your home at risk for deed theft! Deed theft is when someone  puts the title of your house in their name without you knowing about it or agreeing to it. This is more common than you might think, so it is important to prevent tangled titles or address them as soon as possible. 

In addition, if your title is tangled, it can make it harder or impossible to maintain your home. Setting up utilities, applying for utility or mortgage assistance, and getting help making home repairs are all harder with a tangled title. 

3. What should I do to prevent the title to my home getting tangled? 

It is important to know whose name is on the title. If you aren’t sure, you can check at the following link for free: https://epay.phila-records.com/phillyepay/web/ Use the free public login, and then you can search either by address or by name. 

If the house is in your name, make sure you know what you want to happen to the house when you pass away. If you want a particular person to get your house, you should consider making a will.  

3. Why isn’t my name on the deed? 

There are two possible scenarios: 

  • Your name isn’t on the deed, and it isn’t supposed to be. Perhaps you live with a relative, and your relative’s name is on the deed. In this situation, it’s best to talk to your relative about what they want, especially after they pass away. It is also a good idea for your relative to make a will. 
  • Your name isn’t on the deed, but it should be. There are a variety of reasons why this could be. It is best to seek out legal help, especially if you think someone might have stolen your deed. 

If you can afford a lawyer, you can call the Philadelphia Bar Association’s Lawyer Referral and Information Service (LRIS) at 215-238-6333.  

If you need free legal assistance, you can contact the Save Your Home Philly Hotline at 215-334-HOME (215-334-4663). 

4. Why should I have a will? 

When someone dies, their property and belongings have to go somewhere. If there is no will, Pennsylvania law will decide who gets everything. The law does not care who you were closest with during your life; even if you have a brother you haven’t spoken to for years, the law will still insist that he inherit instead of a cousin or friend you were closer to. However, with a will, you have more control! You can use a will to choose who gets what, who manages your property after you die, and, in some cases, how your property gets used.  

5. My title is tangled, but there has not been deed theft. What should I do? 

It depends on how your title got tangled. While a relative passing away is often the cause, it’s not the only thing that can cause a tangled title. It’s best to seek out legal assistance to make sure you don’t take on unnecessary risk or open yourself up to possible harm. Even if everything seems fine right now, there’s no reason to wait. In fact, waiting until something happens could make untangling your title even harder.  

If you have more questions or think you might need legal help, call the Save Your Home Philly Hotline at 215-334-HOME (215-334-4336).

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  • basics real estate title deeds

The Basics of Real Estate Title Deeds

As with so many legal terms, one uses the word and concept “title deed” often whether one is engaged in real estate business or not. One wishes to obtain a “deed” to a piece of property and generally understands that in order to own the property one must be named on the “deed.”

But what is a title deed and what is the legal effect of the various types of title deeds or recording the deed? What happens if one is granted a defective title deed and how does a deed get negated by adverse possession ?

This article shall outline the basic law of title deeds.

What is a Deed?

In its most basic definition, a title deed is a document that vests ownership in a person and conforms to various requirements imposed by state law as to what must be contained on the deed. It normally has a “legal description “ of the land or real estate right granted, which is a detailed description of the location of the land, often created by surveys. The document indicates who owns the property and usually who granted the deed to the current owner.

Recording deeds is a system of recording legal instruments at the Recorder of Deeds. The Recorder of Deeds is a local government office which maintains records and documents relating to real estate ownership.

A deed to real property becomes a public document when it is recorded with the Recorder of Deeds subsequent to delivery and acceptance. The initial step in the recording process is the presentation of deed along with copies to the recorder’s office in the county where the property is located. The copy of the deed is inserted into the current book of official records in numerical order. A map of the property is also included as a part of the document for identification purposes. The original deed is returned to the owner of the property from the office of the recorder after proper entry.

The office of the Recorder of Deeds maintains a set of indexes about each deed recorded, for an easy search. Almost all states have a grantor-grantee index including a reference to all documents recorded. These indexes are classified according to time periods.

Title deeds do not have to be recorded. Recording is filing them in the county recorder’s office and if recorded, the title deed acts as defacto notice to all third parties as to ownership in the property. Note that a bona fide purchaser is one who has reasonable cause to believe that title is vested in him or her, e.g. either by mistake or fraud, a person granted a false deed to the bona fide purchaser. In certain circumstances a bona fide purchaser may even have superior rights to the property over the actual title holder. If one records the deed, then there can be no bona fide purchasers (unless one acts oneself to void one’s deed) since notice of true ownership is given to the world. Thus, recording increases the protection of the deed.

Chain of title is simply the history of the deeds ownerships over time, from the original owner of the property to the present owner. A break in the chain of title occurs when there is a period in which there appears to record owner that precedes the current owner. Thus, if W granted X title and X granted title to Y, but Z shows no title from Y but has name on title from A, there is a break in continuity of title and true ownership may not be demonstrated by the deeds alone.

Most deeds must be notarized to be effective. If not recorded, the actual physical deed must be held by the owner to demonstrate ownership and if lost, requires a complex court action to demonstrate good title to the land.

Types of Deeds:

QUIT CLAIM DEED :

A quitclaim deed is a term used to describe a document by which a person transfers or quits any interest that person may have in a piece of real property and passes title to another person. The party receiving title to the property acquires only those interests and rights that the grantor previously had. A quitclaim deed releases the grantor’s interest in property without stating the nature of the person’s interest or rights, and with no warranties of ownership or encumbrances on the property. While a quitclaim deed neither warrants nor professes that the grantor’s claim is valid, it prevents the grantor from later claiming any interest in the property. Quitclaim deeds are sometimes used for transfers between family members, gifts, placing personal property into a business entity, or in other special or unusual circumstances.

Quitclaim deeds are often used in divorces, where one party grants to the other full interest in property that they previously held as joint tenants. For example, if a husband and wife owned a home in joint tenancy, and the wife is awarded the home via divorce decree, the husband could execute a quitclaim deed to eliminate his interest in the property. A quitclaim deed only changes title to the property, not responsibility for the mortgage. The husband could still be liable for the home loan and could be financially responsible if the wife were to default on the property unless he also takes measures to remove himself from the mortgage. In the above example, the husband would have no interest in the property — if the wife sold the property, the husband would have no claim to money gained from the sale. Quitclaim deeds are also used in tax sales where property is auctioned off to pay outstanding tax debt.

GRANT DEED:

A grant deed is a term used to describe a document by which a person transfers or quits any interest that the person may have in a piece of real property and passes title to another person and warrants ownership and states the nature of the person’s interest or rights.

The grant deed is the most common type of deed used in the selling of property. A grant deed must describe the property by legal description of boundaries and/or parcel numbers. A grant deed warrants that the grantor actually owned the title to transfer. The deed must be signed by the grantor and the grantee. The deed must be acknowledged before a notary public or other official authorized by law to administer oaths. The reason for notarizing is to provide evidence that the document is genuine as transaction documents are sometimes forged. The grant deed is normally recorded in the County Recorder or Recorder of Deeds. The deed declares that the property has not been sold to anyone else and the property is not laden with obstructions other than those items already disclosed to the grantee. It also makes the promise that the grantor has the legal right to sell the property listed in the grant deed.

BENEFICIARY DEED:

A beneficiary deed is a document that expresses an interest in real property, including any debt to a beneficiary. The person who receives the real property in a beneficiary deed is referred to as the beneficiary. A beneficiary deed expressly indicates that the deed is effective on the death of the owner. The transfer of interest to the beneficiary is associated with all conveyances, assignments, contracts, mortgages, deeds of trust , liens, security pledges and other encumbrances made by the owner. A beneficiary deed is an important document. It allows a smooth transfer of ownership between past and present owners.

A beneficiary deed may delegate to multiple grantees. Such grantees take title of the real property as joint tenants and get a right of survivorship as tenants in common . Sometimes, a beneficiary deed may delegate successor beneficiaries.

In a beneficiary deed, there is no change in current ownership and the owner enjoys absolute control in real property. The owner can sell, gift or exchange the real property even if a beneficiary deed is executed. The owner can annul or cancel the beneficiary deed at any time. Beneficiary deeds are suitable for real properties such as land, homes, ranches, condos, time-share, and mineral interests.

LIFE ESTATE:

A person may own interest in real property only for the term of his or her life. This is called a life estate and is so designated on the title deed. The person who receive the property upon the death of the holder of the life estate is termed the remainder man. There are usually restrictions on what the person holding the life estate can do with the property so as to protect the remainder interests, but during the life of the life estate holder, that person has exclusive right to use the property. Note, however, that the owner of a life estate cannot transfer more than he or she owns, e.g. the life estate only can be transferred to a third party.

DEED OF TRUST:

A deed of trust is a transfer of interest in land by a mortgagor-borrower to a mortgagee-lender to secure the payment of the borrower’s debt. A deed of trust is an arrangement among three parties: the borrower, the lender, and an impartial trustee which is an entity that holds “bare or legal” title. The borrower transfers legal title to real property to the trustee who holds it as security for the loan. The borrower retains equitable title to, and possession of, the property. The trust deed is recorded with the County Recorder where the property is located as evidence of and security for the debt.

When the loan is fully paid, the monetary claim on the title is transferred to the borrower by reconveyance to release the debt obligation. If the borrower defaults in the payment of the debt, the trustee has the right to sell the property and pay the lender the proceeds to satisfy the debt. The trustee will return surplus amount, if any, to the borrower.

The right of the trustee to sell the premises is called foreclosure by power of sale. A foreclosure by power of sale is neither supervised nor confirmed by a court. The procedure for a foreclosure by power of sale is regulated by statute. All interested parties must be given notice of the sale, which must be published in local newspapers, usually in the public notice columns, for a certain period of time as required by statute. The sale is usually open to the public at auction to ensure that the property will be sold at its fair market value.

Trust deeds are the most common instrument used in the financing of real estate purchases in Alaska, Arizona, California, Colorado, Idaho, Illinois, Mississippi, Missouri, Montana, New Mexico, North Carolina, Texas, Virginia and West Virginia. DEED IN LIEU OF FORCLOSURE:

A Deed in lieu of foreclosure is a written legal instrument in which a mortgagor (the borrower) conveys all interest in a real property to the mortgagee (the lender) to satisfy a loan that is in default and avoid foreclosure proceedings.

The borrower in a deed in lieu of foreclosure is released from most, if not all, of the personal indebtedness coupled with the defaulted loan. The borrower also avoids the public dishonor of a foreclosure proceeding.

The lender in a deed in lieu of foreclosure benefits from a reduction in the time of foreclosure process. The lender also enjoys a reduction in the cost of repossession and avoids the added delay and costs associated with the possibility of the borrower filing for bankruptcy.

The indebtedness in a deed in lieu of foreclosure is secured by the transfer of real property. In a deed in lieu of foreclosure, the borrower and the lender enter into the transaction voluntarily. This deed must contain a total consideration equivalent to the fair market value of the real property conveyed.

WARRANTY DEED:

A warranty deed ensures that the title conveyed over property is full and free from encumbrances. It establishes trust between a buyer and a seller because the seller covenants that he will protect the buyer against any claim on the property. In short, a warranty deed makes a seller accountable to the buyer.

Usually mortgage lenders require a warranty deed before they finance any transaction based on a property. Through a warranty deed, a seller assures the buyer that the transaction is legal, proper and the title uncontested. Before a warranty deed is issued, a professional title company conducts a research on the title of the property and also delves into the history of the property to make sure that there are no legal problems. When a warranty deed is in place, a buyer usually need not worry about state of title or if a seller’s unpaid creditors will be staking claim on it. It ensures that title to property is full and final.

A tax deed is a legal document that provides written proof of ownership of real property acquired from the government at a tax sale. A tax sale is conducted by the government after a stipulated period of time for the non-payment of tax on real property.

Real property taxes are considered delinquent if not paid within a prescribed period of time. The property owner has an obligation to pay the real property taxes and failure to do so may result in a tax lien on the property and eventually a tax deed sale.

At a tax deed sale, the minimum bid is generally the amount of back taxes owed plus interest and costs associated with selling the property. In the event the property is not purchased, title may revert to the county government. In most jurisdictions, the county transfers title in a tax deed sale through either a Tax Deed or a Sheriff’s Deed.

California Specific Deed Law:

Warranty Deed – If a deed is intended to be a general warranty deed, it should contain a phase specified by state law such as the phrase “conveys and warrants”. These words, called operative words of conveyance, carry with them several warranties which the grantor is making to the grantee. Examples of the warranties are:

First, the grantor warrants that the grantor is the lawful owner of the property at the time the deed is made and delivered and that the grantor has the right to convey the property.

Second, the grantor warrants that the property is free from all encumbrances or liens.

Third, the grantor warrants that he or she will defend title to the estate so that the grantee and the grantee’s heirs and assigns may enjoy quiet and peaceable possession of the premises with the power to convey the property.

Quitclaim Deed – A quit claim deed conveys to the grantee and the grantee’s heirs and assigns in fee all of the legal or equitable rights the grantor has in the property that existed at the time of the conveyance. An example of operative words of conveyance are “convey and quit claim.” There are no warranties of title.

Special Warranty Deed – In contrast to a general warranty deed, a special warranty deed limits the liability of the grantor by warranting only what the deed explicitly states. A special warranty deed has practically the same effect as a quitclaim deed. Special warranty deeds are generally used by corporations or other entities that want to avoid assuming the liability of a general warranty deed. Like the general warranty deed, the special warranty deed should contain the appropriate language such as “conveys and specially warrants.” Usually, the grantor warrants that he or she did nothing to impair title during the period the grantor held the title. While a special warranty deed may contain covenants of title, these covenants will usually cover only those claims arising by, through, or under the grantor.

Fiduciary Deed – This is a deed to be executed by a fiduciary such as a trustee, guardian, conservator, or similar person in their appointed capacity.

Terms Common to Deeds :

Grantor – The person who owns the property and executes the deed conveying the property to another person. This can be one or more persons, a corporation, limited liability company (LLC), partnership or other entity.

Grantee – The person who receives title to the property. The grantee can be one or more persons, a corporation, LLC, partnership or other entity.

Consideration – The value given to the grantor by the grantee in exchange for the conveyance. Some states include the exact consideration in the deed and others do not but instead include a statement of consideration as being 10.00 and other good and valuable consideration.

Operative Words of Conveyance – These are state specific and generally are statutory. They show intent to transfer present title. As previously mentioned, examples are “conveys and warrants”, or “convey and quitclaim” or convey and specially warrant”.

Legal Description – The legal definition of the property being conveyed. This is contained in the deed where the grantor obtained title to the property and should be used in the deed where the grantor conveys the property exactly as written in the grantors deed unless not all of the property is being conveyed.

Life Estate – A life estate is where a person owns all the benefits of ownership in the property during their life, or the life of another, with the property going to a remainder person after the death of the life tenant.

Tenants in Common – This is how two or more people (co-tenants) may take title to property who intent their share in the property to be separate from the other on death. On the death of the tenant in common the deceased persons ownership in the property is left to his or her heirs or as specified by Will. Compare to Joint Tenants. If tenant in common ownership is desired the deed usually provides, “to Grantees, A and B, as tenants in common and not as joint tenants”.

Joint Tenants with Rights of Survivorship – This is how two or more persons may take title to property when the parties want the entire ownership to go to the survivor instead of the heirs of the survivor. On death of a joint tenant with rights of survivorship, the entire interest of the deceased co-tenant goes to the surviving co-tenants. Compare to Tenants in Common . In stated without community property, it is common for husband and wife to take title as joint tenants with rights of survivorship. If joint tenant with rights of survivorship ownership is desired, the deed usually provides, “to Grantees, A and B, as joint tenants with rights of survivorship and not as tenants in common”.

Community Property – In community property states, special laws govern how property is owned between husband and wife. There are significant tax benefits and rights associated with this unique type of ownership and the reader should review our article on the topic.

Reservation Clause – This is a provision of a deed where the grantor may reserve some right in the property such as mineral rights.

Exception Clause – This is a clause in a deed were exceptions to title conveyed may be listed. Example, “Less and Except a prior reservation of all oil, gas and mineral rights in the property conveyed.”

Subject to Clause – This is a clause in a deed where property usage rights may be states. Example: “Subject to all rights of way, easements and protective covenants of record”.

Execution and Acknowledgments:

Execution – A deed must be in writing and signed by the grantor(s). Generally, deeds conveying a homestead estate must also be signed by the grantor’s spouse.

Acknowledgments – In addition to the signature of the grantor(s), deeds must be acknowledged to be recorded and acceptable as evidence of ownership without other proof. Each state has special acknowledgment forms.

Procedural Requirements:

Name, Address, phone – The names of the grantor and the grantee should appear on the deed. The address and phone numbers are also usually included.

Recording or Filing Place – Generally, deeds should be recorded in the county in which the real estate is located. Although generally a deed does not have to be recorded to be a valid conveyance, there are practical reasons for recording a deed. Deeds usually do not take effect as to creditors and subsequent purchasers without notice until the instrument is recorded. Thus, unrecorded deeds may be void as to all subsequent creditors and subsequent purchasers without notice until they are filed for record. Recording a deed places subsequent purchasers on constructive notice in that subsequent purchasers are deemed to have actual knowledge of any recorded instrument.

Some states are “race-notice” states, which means that the first grantee without notice to record a deed to property will be protected against the interests of other grantees with unrecorded deeds to the same property.

Acceptance and Delivery – Another element of a valid deed is that the deed must be delivered and accepted to be an effective conveyance. Most states assume delivery if the grantee is in possession of the deed. The deed also must be accepted by the grantee. This acceptance does not need to be shown in any formal way, but rather may be by any act, conduct or words showing an intention to accept such as recording the deed.

Conclusion:

A title deed is far more than a contract . It is a document that can directly alter property rights and depending on the type of deed, vests rights and obligations between the holder and third parties. Based on the type of deed, whether recorded or not and the chain of title, property can be lost or encumbered in significant ways that are of immediate effect on the possible owners and buyers.

In short, anyone dealing with real property must be conversant with the law of deeds or hire competent experts to advise them as to appropriate holding of title.

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Deeds of Title

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  What Is a Deed of Title?

A deed is a legal document that assigns ownership of a home, or a piece of land, from one individual to another. The physical deed document will typically define, in writing, the precise location of the property. It will also include the names of the former owners of the property and the new owners’ names.

Many different types of deeds may be utilized to transfer the ownership property from one person to another, but all deeds must be signed by the individual transferring the property to the new owner. Further, the signature must be notarized to establish that the ownership transfer is valid.

A deed of title, or title deed, is a detailed legal document that transfers the title of real estate from one individual to another. Full ownership of a piece of real estate is provided to the new owner. Usually, such a transfer would occur through a standard real estate sale; however, a title may be transferred in other ways. An example of this would be when someone gifts a portion of land to another individual.

The title deed is categorized as a general warranty deed in most cases. A general warranty deed is a distinct type of deed in which the current owner assures that they hold a clear title to a piece of real estate.

A general warranty deed is used for most real estate deed transfers because it delivers any deed’s most significant amount of protection. It may be known as a grant deed in some states.

Deeds of title should not be confused with a deed of trust. A deed of trust grants a lender or mortgage lender a lien on the property if a debt is owed.

What Is a Deed?

What is the difference between a deed and a title, how is a transfer of title completed, what if there is a dispute regarding the deed of title, do i need an attorney for issues with deeds of title.

Deeds transfer titles. A deed is the basic legal document that would transfer the ownership (title) from one individual to another. A deed is signed by the individual selling or transferring the property rights, called the grantor. The grantee is the person purchasing or taking possession of the property rights. Easy enough, right? But where is the mix-up, and how can we differentiate the two terms?

The actual deed itself and having title to a piece of property are slightly different. A deed is the actual legal instrument or written document that conveys property ownership from one individual to another. When purchasing a home, you will be signing the deed to the home, creating your right to claim ownership of that house.

A title refers to a legal relationship between a person and their land. A title creates a right to a specific piece of property. An example of this would be getting a loan from a bank to buy a piece of land. The bank will hold title to the property until the loan has been paid off in full, then the bank will transfer the title to the property to the borrower.

A deed is evidence of a specific event of transferring the property’s title from one person to another. A title is a legal right to use and modify the property how you see fit or transfer interest or any portion you own to others via a deed. A deed conveys the right of the owner to claim the property as opposed to the title that names the ultimate holder of the property.

Let’s stroll through the procedure where these two phrases will apply to understand title and deed better. During the closing process, a “title search” will be ordered. A title search is a probe of public records that affect the ownership (title) of the property.

The public records explored are previous deeds, mortgages, paving assessments, liens, wills, divorce settlements, etc. After the search is completed, a title examiner will specify and verify the property’s legal owner and what debts are owed against the property. The examiner will use all of the above data to create the “title abstract.” The title abstract is used to resolve if the property has a clear title, which means the seller has the right to transfer the property. The settlement agent will then organize all documents and schedule the closing. Included in these closing documents is the deed. While closing, the seller signs the deed, transferring the title and ownership of the property.

Additionally, the buyer will sign the new note and mortgage and pay off the old loan. Questions about deciphering the difference between title and deed? A professional attorney on LegalMatch can help you every step of the way.

Regardless of how the new owner comes to acquire the title to the property, a deed of the title must be referenced and recorded with the county recorder’s office. A deed of title creates a written record of the property transfer and can prevent legal altercations later on. Deeds must be recorded for title searches, as well as the certainty of title. A title search will provide an interested party with important information on the property, such as the property’s chain of ownership.

A title search will also provide information on any encumbrances, such as liens. Recording a deed grants the property’s owner certainty of title, meaning that the recorded deed supplies a degree of assurance that the property owner does indeed own the premises. Additionally, it assures that the property owner’s rights are secured against legal challenges.

One of the most common disputes regarding title deeds is resolving who the previous owner was. Not only would such a controversy hold up the pending sale, but it could also result in a lawsuit. Should such a dispute arise, it will likely be necessary to search title deed records so that all parties involved can view the chain of title .

Chain of title refers to the history of the passing of title from the present owner, all the way back to the original owner.

Chain of title may be designated through various documents, including but not limited to:

  • Deeds to the property;
  • Foreclosure documents;
  • Documents from judgments of distribution; and,
  • Death certificates from joint tenants and other relevant parties.

Viewing the chain of title is an essential step to clarifying who is entitled to own the property in question. As you can imagine, a title dispute can be severe and stressful, so ensuring that the chain of title is transparent can help avoid it in the future.

Suppose you are attempting to transfer ownership of a piece of property or are otherwise experiencing any issues with deeds of title. In that case, you should consult with a skilled and knowledgeable property attorney . The attorney can educate you on your state’s specific laws regarding the matter and conduct a title search and represent you in court as needed.

A lawyer on LegalMatch may assist you with any title or deed issues you may encounter. Save yourself the time and hassle of researching the deed to your property. Hire a lawyer on LegalMatch today.

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Home Resources Real Estate Deed vs Title

Deed vs Title: What is the Difference?

Jana Freer

Updated September 21, 2023 | Written by Jana Freer Reviewed by Susan Chai, Esq.

Understanding the difference between a home title and a property deed during home-buying is essential. Most people assume titles and deeds are the same but different.

A deed is a legal document used to transfer title, while title represents the ownership rights associated with a property . Both are fundamental concepts in property law and essential in any real estate transaction.

Both legal concepts are closely related, but they’re distinct. To avoid unforeseen ownership problems as home buyers and feel more confident you’re the legal owner of your dream home, you must understand the differences.

What is a Deed?

What is a title, deed vs. title: understanding the difference.

Parties to real estate transactions use a deed to transfer ownership (property and title) and legal rights from the seller ( grantor) to the buyer ( grantee) . The deed can be for a condominium, townhouse, or house.

All property deeds must contain the following elements to be considered legal, valid, and enforceable:

  • Language stating the grantor can legally transfer the property
  • Language stating the grantee can legally receive the property
  • An accurate written legal description of the property
  • The signatures of both the grantor and grantee

You must file the deed in the county courthouse, with the clerk, in the county assessors’ office or recorder’s office, or with the registrar where the property is located for the deed to be fully binding.

The three main types of deeds related to property conveyance (real estate transfers) are general, unique , and quitclaim deeds.

General Warranty Deed

A general warranty deed provides the most protection to grantees during a sale.

Each state has its rules and regulations regarding how these deeds function, and it’s essential to research your state’s laws before signing.

In a general warranty deed, the grantor makes legally binding guarantees called covenants regarding the quality of the real estate title.

Because of these guarantees, warranty deeds are sometimes called “full covenant and warranty deeds.”

There are four covenants that every general warranty deed should include:

  • Covenant of Seisin : The grantor promises they have the legal right to convey or transfer the property.
  • Covenant of Further Assurance : The grantor promises to provide all paperwork and documents necessary to validate the title.
  • Covenant of Quiet Enjoyment : The grantor promises the grantee won’t be disturbed or removed from the home because of a discovered defect.
  • Covenant Against Encumbrances : The grantor promises no liens or encumbrances against the property.

Special Warranty Deed

A special warranty deed, often used for or for commercial properties – or like a grant deed or bargain and sale deed (for sales following a foreclosure or tax sale), limits the title defect protection the grantee receives.

A grantor uses a special warranty deed, such as a grant deed or bargain and sale deed, to promise that no defects occurred when the grantor owned the property.

This means that the grantee is unprotected against problems that arose before the period of the grantor’s ownership. You’ll typically see special warranty deeds during bank foreclosures of residential property or commercial property transactions.

Quitclaim Deed

A quitclaim deed , sometimes called a non-warranty deed, conveys the grantor’s title to the grantee without warranties or promises.

As a result, it provides the least protection to the grantee and is probably best used between family members.

If the grantor has a clear title, a quitclaim deed conveys the property as effectively as a general warranty deed.

However, if the grantor conveys a title with defects or problems, the grantee of a quitclaim deed has no protection or the ability to take legal action against the grantor.

This is why quitclaim deeds are most common in the following situations:

  • Between family members, such as adding or removing a spouse or
  • By grantors who want to fix defects, or
  • In official transactions like court and estate proceedings, mortgage defaults, and sheriff’s sales.

It’s also important to note the tax implications of using a quitclaim deed. Upon transferring ownership, the grantee must pay property taxes on the real estate from that date.

Additionally, some states may impose a transfer tax for quitclaim deeds based on a percentage of the amount paid to acquire the property (“consideration”).

Many states require you to file a deed in the assessor’s office for it to be valid.

Remember that there may be exemptions for the various taxes associated with quitclaim deeds, and you should consult a tax professional if you have any questions.

A title is the legal right to own a tangible asset like a home or car. Unlike a deed or a vehicle title, a property title is conceptual and not a physical or legal document.

Titles can be held in various forms, like fee simple absolute, life estate, joint tenancy, or tenants in common, each with different implications for the owner’s rights and the transferability of the property.

A title includes a series of benefits, known as a “bundle of rights,” often in a properly drafted deed.

These rights are inherent in the title, regardless of what is stated in the deed. The deed is the mechanism for transferring these rights but does not define them.

As a homeowner with a valid deed, your bundle of rights includes the following:

  • The right of control : Your ability to use the property legally.
  • The right of disposition : Your right to permanently or temporarily transfer ownership of the property as long there are no loans, liens, or other encumbrances. These factors do not necessarily prevent transfer but may complicate it – a property can still be sold with a mortgage, but the mortgage usually needs to be paid off with the sale proceeds.
  • The right of enjoyment : Your right to enjoy the property legally. (This is distinct from the right of control.)
  • The right of exclusion : Your right to choose who is allowed on the property.
  • The right of possession : Your legal right to claim property ownership.

A single individual or multiple individuals/entities, such as a married couple or a corporation, can possess title to a property.

The title must be clear to transfer a property from the grantor to the grantee. A clear title is free of undisputed claims of ownership, which means it doesn’t have debts, liens, back taxes, or other creditor claims.

To protect yourself against these risks, purchase owner’s title insurance and perform a title search if you consider buying a property .

Many property transfers involve an Affidavit of Title , a form grantors use to swear their title to a piece of real estate. However, an affidavit is not a substitute for a thorough title search or insurance.

Title Insurance

Title insurance protects grantees from hidden or unknown defects or encumbrances (like liens from bankruptcies, past due child support payments, and unpaid contractor work).

The grantee typically purchases it for a one-time cost before the property sale.

Unlike other insurance policies that protect against future events, title insurance offers protection against past events that blemished the real estate title.

Many potential issues can make a title “cloudy,” including the following:

  • Ownership or disputed ownership by another party
  • Judgments against the property, like lawsuits or mechanic’s liens
  • Forgery and fraud
  • Unresolved building code violations

In addition to the standard form of insurance the buyer purchases, sellers can buy an owner’s policy for extra coverage.

The property seller purchases an owner’s title insurance policy as another protection against potential problems during a title search or if someone attempts to sue the property owner, stating they have a claim to ownership.

Banks and other lending institutions often require a mortgage lender’s title insurance on a property before it will allow the closing of a loan and escrow.

Title Search

Title insurance covers the cost of a deep title search performed by a real estate attorney or title company.

Experts carefully examine all public records and legal documents during this search and create a title abstract based on data collection to identify potential title defects, claims, and disputes.

If a search identifies any problems (cloudy and unclear title), the grantor is responsible for resolving the issues before the sale occurs.

In essence, a deed (house deed or property deed) is the document to transfer the title (and the property) from one owner to the next . and a title is a right to legal ownership of a property.

A property title must be carefully examined and protected because any defect or unresolved problem can render it invalid.

It’s also essential to select the correct type of property deed and draft it carefully to ensure the legal transfer of ownership from the grantor to the grantee.

Remember that title is not a document on file in the public record but rather a legal term used to refer to property ownership. 

Buyers can rest easier with their home purchase and enjoy their new property without fearing future complex legal issues if all parties understand these terms and execute these legal documents properly.

Please learn more about deeds and titles by reviewing our forms and checking out our document builder.

Jana Freer

Real Estate Editor

Jana Freer is a Real Estate Editor with Legal Templates, where she creates and edits legal form descriptions and articles to help landlords and tenants better understand real estate processes. She...

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Property Deed Basics

  • Real Property

This article explains some fundamental concepts behind property deeds in Texas. It explains what deeds are for, the types of deeds, and why it is important to seek professional assistance in preparing deeds.

What is a deed?

A deed is a legal document that transfers ownership of real property. Real property is land, or anything attached to land, such as buildings.

The parties to a deed: Grantors and Grantees

Deeds typically refer to two parties—the grantor and grantee. The grantor is the current owner  who is transferring the property to someone else. In other words, the grantor is the seller or giver of the property.

The grantee is the person who receives the property. In other words, the grantee is the buyer or gift recipient.

Why is a deed important?

In addition to transferring ownership, real estate deeds contain important information about the property. This includes:

  • The new owner (grantee)
  • The previous owner (grantor)
  • The land’s location and boundaries (property description)
  • Encumbrances, if any (limitations on how the land may be used)

A chain of well-written deeds will allow you to track the property all the way back to the original owner. This helps ensure that there will not be any unexpected claims on the property. 

Title vs. Deed

In real estate, the terms "title" and "deed" can be confusing. Title is the property right. The deed conveys that right.

Real estate title is not a document. Rather, it is the strength of one's ownership claim. An unassailable ownership claim, or "clear title," relies on a clear chain of grantors and grantees that one can track from the original owner to the current deedholder. Having a clear title means that there will be no unexpected, valid claims on the property against the deedholder.

A deed is the document that transfers the grantor's ownership to a new person, the grantee. If title is based on a clear chain of ownership, deeds are the links of that chain.

How do I record a deed?

In Texas, you record your deed with the County Clerk in the county where the property exists. If the property is in more than one county, record it in each.

It is important to record your deed. In Texas, the property is legally transferred when the grantee accepts the signed deed. However, recording the deed lets everyone know who owns the property. This helps prevent someone else from claiming they own it. Recording every deed also clarifies the chain of ownership, which helps assure future buyers that you have the right to sell the property. It can be difficult to sell property if you cannot show clear title.

What are the basic requirements of a deed?

To be legal, a deed must be in writing, signed, delivered, and accepted.

In Writing  

A deed must be in writing. You cannot use an oral agreement to transfer real estate.  

The grantor must sign the deed in front of a notary or two credible witnesses. A grantor can only transfer their own rights to property. That means if more than one person owns the property, each owner must sign. If only one owner signs, the grantee becomes co-owner with anyone else who still has rights to the property.  

A deed does not require the grantee's signature .   

Delivered and Accepted

A deed is effective when the grantor gives it to the grantee and the grantee accepts it. Some types of statutory deeds, such as transfer on death deeds, may not require this step.

What else should a deed include?

A deed can, and probably should, include more than the legal minimum. A well-written deed might include:

Land Description    

A deed should fully describe the property. This is more than a mere address. The description should clearly lay out the property’s boundaries.

This description can be in the deed itself. The deed can also reference a description found elsewhere, so long as it is in writing and exists when the deed is drafted. For example, a deed could reference a public survey, property tax documents, or even the most recent deed to the property.  

Example property description: Lot 25, Block 10, of Oak Creek Subdivision #8, as per a plat recorded in Plat Book 40, Page 8, of the Public Records of Crowder County, Texas.

Identity of the Parties

The grantor or their agent must sign the deed. The grantee does not have to sign. However, it is important to identify the grantee, by name or some other means, so that ownership is clear.

Consideration

“Consideration” is something valuable given in exchange for something else. In other words, consideration is the purchase price. Consideration does not have to be money--it can be in-kind work, debt forgiveness, release of a legal claim, etc.

A consideration clause does not have to go into detail or even list the entire purchase price. In Texas, deeds often include language similar to “in exchange for $10.00 and other valuable consideration,” even though real estate usually sells for far more than $10.00.

While transferring property does not require consideration, consideration can help strengthen a grantee’s claim as a good faith purchaser. Consideration is also necessary for any contract. While a deed is not a contract, it may be subject to one.

Grantee Address

While a valid deed does not require the grantee address, you do have to include a mailing address for each grantee when you record the deed with the County Clerk. You can include the addresses in an attachment if needed – it does not have to appear within the deed itself. You can also pay a penalty fee if you choose to file without any mailing addresses.

The recital is an optional opening statement that might include a description of the parties, the reasons for creating the deed, or other facts relevant to the deed.

A   habendum describes the rights being granted. This can be especially important for deeds that only grant partial rights. For example, a mineral deed might give only a percentage of the total mineral rights to the grantee.

Permitted Encumbrances

An encumbrance is a limit on land use, such as a lien, easement, or restrictive covenant. These are common and are often listed as "permitted" under the deed's warranty. Doing so means the grantor will not be liable for the encumbrance when granting a warranty deed.

Main Types of Deeds

There are several types of deeds that offer different levels of protection for the buyer . 

General Warranty Deed  

A  general warranty deed   offers the most protection for the grantee . In a general warranty deed, the grantor guarantees that there are no encumbrances, such as liens or other rightful claims to the property. If it turns out that there are such encumbrances, then the grantor is responsible .

Note that land often has easements or other restrictions on use. These can be included as “permitted encumbrances” if the grantor does not want to be liable for them. An attorney can help you include the right language.

Special Warranty Deed  

A  special warranty deed  guarantees some protection for the buyer but not as much as a general warranty deed. A  special warranty deed only guarantees that no new problems or encumbrances arose while the grantor owned the property.   T he seller doesn’t make any promises about the condition of the title before they owned the property.

Deed without Warranties

A deed without warranties only transfers title to the property, with no protections for the grantee. It makes no promises and offers no legal recourse if there is a problem.  It allows the grantor to give up all ownership, with no responsibility toward the property or the grantee in the future.

In some cases, a deed without warranties may be better than a quitclaim deed because a quitclaim deed, as a matter of law, gives notice to the grantee that there might be other claims on the property. That makes it harder to protect against those claims, should they arise. In other words, a quitclaim deed weakens title, whereas a deed without warranties transfers the title as-is. (Texas passed a statute that gives limited protections for quitclaim transfers, but those protections do not begin until at least four years after the sale.)

Quitclaim Deed  

A quitclaim deed gives the grantee all of the grantor’s rights, whatever those may be. Often it may not even be clear if the grantor has any rights to give, but it prevents the grantor from making any claims on the property in the future. Like a deed without warranties, a quitclaim allows someone to just walk away from all rights--or potential rights--to a property.

A quitclaim deed is simple to use but gives the grantee the least amount of protection . Texas courts have said a quitclaim deed, by definition, puts the grantee on notice that there may be other claims on the property – even if those claims are based on unrecorded deeds that are not on public record. In the past, this could make it impossible for the grantee, as well as any future buyer, to ever have clear title or claim protection as a good faith purchaser. Texas passed a law in 2021 to help fix this problem. Now, a grantee becomes a good faith purchaser four years after recording a quitclaim deed.

What is a good faith purchaser?

A good faith purchaser, also called a bona fide purchaser, is someone who buys the property for value and without notice that someone else might have a claim on the property. Notice can be actual or constructive.

Actual notice is when the buyer knows that someone else may have a claim on the property. Constructive notice is when the buyer should know that someone else may have a claim on the property. For example, if there is a deed on record with county clerk, the buyer has constructive notice of that deed whether or not they checked the county records.

A good faith purchaser is protected against another person’s claim on the property.

Example: Gary is an unscrupulous property owner. Gary sells property to Jane, who never records the deed. Jane legally owns the property. But then Gary sells the same property to Bob, even though Gary no longer has a right to do so. Jane then sues Bob, saying that the property belongs to her because she bought it first. Unfortunately for Jane, Bob did not know about Jane’s purchase and Jane’s deed is not in the public record. That means Bob had no actual or constructive notice of Jane’s claim on the property when he bought it. Bob gets to keep the property because he is a good faith purchaser. Jane may sue Gary for damages, but she cannot take the property from Bob.

What is an easement?

An easement  exists when someone who is not an owner has the legal right to use property in a limited way. For example, a utility company may have an easement to place electric lines. Easements can be negotiated, obtained through condemnation, or arise after a long-term pattern of use.

A warranty deed should list any easements. Otherwise, the grantor may have to compensate the grantee.

What is a restrictive covenant?

A restrictive covenant is a rule that all of the local landowners must follow. For example, everyone in a neighborhood might have to keep their lawns trimmed to a certain height. Or they might be prohibited from painting their house certain colors. 

Developers often include restrictive covenants when they sell parcels in a new development. It usually falls on the homeowner association to enforce such covenants.

A warranty deed should mention any restrictive covenants, else the grantor may be liable.

What is a lien?

A lien is a property right based on a debt. For example, if you put up land a security on a loan, the lender will have a lien on your home until you pay back the loan.

Liens must be addressed when selling property.

Common Types of Special Purpose Deeds

Many types of special purpose deeds exist to meet different legal needs. These deeds may fall into the general, special warranty, no warranty, or quitclaim deed categories. All deeds must meet the basic legal requirements for a deed unless a statute makes an exception.

Transfer on Death Deed

Transfer on death deeds are special deeds that only take effect upon the grantor’s death. They are used to give land to an heir without using a will. This means the land does not have to go through probate for the grantee to take ownership. Unlike most deeds, the law says that the grantor does not have to deliver the deed to the grantee to make it valid. Also, it is revocable so long as the grantor is alive.

Ladybird Deed

A ladybird deed is similar to a transfer on death deed in that it takes effect when the grantor dies. Like a transfer on death deed, it can help avoid probate. There are some differences, though. For example, a power of attorney can be used to execute a ladybird deed, but not a transfer on death deed. When trying to decide whether to use a ladybird deed or a transfer on death deed, it is best to consult an estate planner or attorney.

Correction Deed

A correction deed is used to correct errors in a deed, such as misspellings.

Deed in Lieu of Foreclosure

A deed in lieu of foreclosure is used when a borrower fails to make mortgage payments and gives the property to the lender instead of going through the formal foreclosure process. This cancels the debt and helps make sure that they won’t owe anything should the property sell for less than the amount remaining on the loan. It can also help the borrower protect their credit.

Note that in Texas, “deed in lieu of foreclosure” describes the process of giving over a deed in exchange for debt forgiveness. It is not necessarily the actual title of the deed document. This is a technicality, but worth mentioning to avoid confusion.

A gift deed transfers property as a gift instead of a sale. It does not include consideration, and so one can argue that it does not protect the grantee as a good faith purchaser--though that should not matter if title is clear.

Joint Tenancy with Right of Survivorship Deed

When co-owners have a joint tenancy with right of survivorship deed, each owner’s rights will pass to the other owners upon death. (Normally, their rights would go to their children or other heirs.)

Note that there are different rules for married and unmarried co-owners, as married couples already have certain survivorship rights.

Partition Deed

A partition deed breaks up jointly owned property and assigns a portion, or "partition," to each co-owner.

Deed with Life Estate Reserved

A deed with life estate reserved allows the grantor to keep using the property as long as they are alive.

Mineral Deed

A mineral deed gives the rights to mine and sell minerals, such as gas and oil, that are found on land. Rights to minerals found on land are often separate from general use ownership, or “surface rights.” It is possible for one person to own the land surface, while someone else owns the mineral rights.

Deed of Trust

A deed of trust is a deed given to a third party, the "trustee," to hold until certain conditions are fulfilled. It is often used to put up property as security for a loan, resembling a mortgage. For example, someone takes out a loan to buy property. The trustee (someone other than the buyer and the lender) gets the deed and technically owns the property while the loan exists. The trustee cannot sell the property unless the borrower defaults on the loan. The trustee transfers the property to the buyer when the borrower repays the loan.

Deed of Trust to Secure Assumption

A deed of trust to secure assumption is used to grant property rights when there is an existing mortgage or similar home finance loan. It requires the grantee to make house payments while giving the grantor, who is not the lender, the right to enforce those payments. It does not remove the mortgage or lessen the lender’s claim.

For example, this type of deed may be used if a divorcing couple needs to divide real estate when both of their names are on the mortgage. The deed lets one spouse use the home and makes that spouse responsible for mortgage payments. If they fail to make payments, the spouse who is not using the home can foreclose. See Divorce and Real Estate  for more on this topic.

Water Rights

Rights to natural water, such as a river running through a property, is separate from land ownership. Water rights, also called riparian rights, are complicated and heavily regulated. If you have concerns over water on your property, consult an attorney.

Deeds vs. Divorce Decrees

A divorce decree may say which spouse should get the property, but the decree does not actually transfer the property. The parties still need to create a deed. The deed should include terms to make sure that the transfer honors the conditions in the divorce decree. For example, a deed of trust to secure assumption may be used to help divide marital real estate when there is a mortgage. See Divorce and Real Estate to learn more.

Should I get a lawyer? Can't I just use a form?

Transferring real estate can be complicated, with lots of room for error. It is always a good idea to get a lawyer to help you prepare a deed. Incorrectly preparing a deed can create liability for the grantor and harm the grantee’s rights.

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Deed vs title: What’s the difference?

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If you’re buying a home for the first time, you’ll likely encounter a number of new terms that probably have never been part of your vocabulary — origination fee, escrow, contingencies (to name just a few). As you review the purchase agreement, pay special attention to two words that play an essential role in defining ownership of a property: title and deed. There are some key things to understand about one versus the other.

What is the difference between a deed and title?

Often, the “ deed ” and the “title” for a property are used interchangeably, but they actually have different meanings, explains James Erwin, founding partner of Illinois-based Erwin Law LLC and an expert in real estate.

“Title to real estate is simply its ownership status, and a deed is the document used to transfer the ownership,” Erwin says. “We often refer to ownership of a property by saying ‘X is on title to Property Z’ or ‘X is the titleholder of record on Property Z.’ That simply means that a review of the records shows that the most recent deed to Property Z transferred ownership to X.”

So, the property’s title is really an intangible concept. The deed, however, is something you can actually hold in your hands: a physical document that you can (and should) keep in a safe place.

What is a deed?

The deed includes the specifics of the buyer and seller involved in the transaction. Let’s say Tim, who is the sole titleholder, is selling a home to Lisa and Ann, who are both listed on the mortgage loan application to buy the property. In this case, Tim is considered the grantor , and Lisa and Ann are the grantees, Erwin says.

“In addition to being executed by the grantor, a deed must comply with state statutory requirements in order to be valid,” Erwin says, “and it must be recorded in the public records of the county where the property is located. Once a deed has been recorded, it becomes part of what is referred to as the ‘chain of title’ — the ownership record.”

Types of deeds

Ownership records aren’t always identical. There are many different types of deeds that can be used in real estate transactions:

  • General warranty deed : If you’re buying a home, this is the type of deed you want to receive. It guarantees that there are no outstanding liens, debts or other claims on the home from any point in time, and if any of those issues do come up, you’ll have no legal responsibility or obligation concerning them.
  • Special warranty deed : Also known as a limited warranty deed because it limits the legal liabilities for the seller. Let’s say that Tim owned the property from 2012 through 2021. With a special or limited warranty deed, Tim guarantees that there are no outstanding liens or issues from that period of ownership. If any issues from before that period arise, Tim is off the hook.
  • Interspousal transfer deed : These deeds are often used in divorce cases when the deed to the home was previously in both spouses’ names and ownership needs to be transferred to just one of them.
  • Quitclaim deed : A quitclaim deed doesn’t offer any legal recourse if issues with the property do arise. It’s often used between two known parties, such as a parent who wants to transfer ownership to a child.
  • Bargain and sale deed: This is a simple deed that states that the person selling the property holds the title to the property. That’s it — there are no other protections from claims about past ownership or debts against the property.

What is a title?

When comparing a deed vs title, you’re likely going to have to pay for more fees associated with the title. This might seem odd: If the title isn’t a physical thing, why are you paying for it?

The reason is to protect yourself from financial catastrophe.

Title search

First, you’ll need to pay for a title search , which can cost between $75 and $100. This is when a title company or attorney combs through property records to look for any signs of potential trouble with the home’s ownership.

Did a past owner fail to pay property taxes ? Is there an unresolved property line dispute ? Did a divorce case between past owners fail to fully resolve ownership at the time?

Think of the title search the way you might review a report of past incidents if you’re buying a used car: You want to know about anything that will give you pause before handing over a check.

Title insurance

Even if the search comes back with a clear title , you’ll also need to pay for title insurance if you’re taking out a mortgage. That’s because most lenders require borrowers to pay for a lender’s title insurance policy to protect their financial interest.

This one-time expense is part of your closing costs, and the price is typically between 0.5 percent and 1 percent of the total cost of the home. So, if you’re buying a $250,000 home, title insurance could cost you between $1,250 and $2,500. You also have the option to buy owner’s title insurance that will protect you in the event of a claim against the property.

This might sound like a lot of insurance coverage, but with your home likely the most valuable asset you own, it can be worth it for the peace of mind in an unexpected situation. An heir of a previous owner can claim ownership to your home, for example, or someone could steal your identity and take out a second mortgage on the property.

Abstract of title

Abstract of title is a chronological document that details the history of the property. It begins with when the parcel was first recorded as owned in the local records and includes information on every transaction involving the property between then and the current day.  It also includes important information such as a record of liens against the property.

Abstract title is like a very in-depth title search. Most searches only go back a decade or so, which is enough to find most issues. Abstract of title gives you the full history, similar to the provenance of a painting or sculpture. Your title company can typically help with generating one if you so desire.

Bottom line on deed vs title

The two terms might not seem very different, but it’s important to understand the nuances of deeds vs titles.  Both relate to ownership of a property, but a deed is a physical document, while the title is more of an abstract concept.

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Title vs Deed: What's the Difference?

While closely involved, understanding the differences between a title and a deed is key to easily navigating the home buying and selling process.

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Planning on buying or selling a home? If so, “deed” and “title” are two important real estate terms you will definitely want to understand thoroughly. The real estate world is full of jargon that is unique to the industry. The deed vs. title debate is a common area of confusion for many first-time home buyers and sellers alike.

These two terms are very closely connected which is the main reason many buyers and sellers have such difficulty differentiating the two. However, while these terms are closely related, deeds and titles remain two separate things. Understanding what these two terms mean in relation to each other is key to easily navigating the home buying and selling process.

What is a title?

A title is a legal term that refers to the legal ownership of something. Titles can be applied to any property item of value such as a car or a boat. Titles can be held by either individuals or by groups of two or more people. In terms of real estate, a title applies to the ownership of a home or property. Holding a title on a home provides a bundle of legal rights. These right  include:

  • The right of possession
  • The right of control
  • The right of exclusion
  • The right of enjoyment
  • The right disposition

Included in this title is also the legal right to resell the home. However, those with a title ownership are unable to do so unless they have a “clear title”. This means that you have proven that your title is clear of liens, bankruptcies, judgements, unpaid taxes or any other defects. New buyers and their lenders don’t want to take on your old debts that use the property as collateral. This is why it's important to perform a title search before moving forward in closing on a house .

What is a deed?

Where a title is the legal confirmation of ownership, a deed is the actual legal document that transfers the title of a property from one person to another. The person selling the home (the grantor) will sign the deed to transfer property rights to the buyer (the grantee). This deed will contain a description of the property, as well as indicate the grantor and grantee. Both parties must sign the document to make the title official.

Types of Deeds

General Warranty Deed

A general warranty deed is the one used most often in traditional home sales as it provides the most protection for buyers. This type of deed ensures that the seller has a clear title and that they are the sole property owner with the right to sell. It also acknowledges that the seller has no knowledge of any unforeseen property issues that may arise with the title during the life of the property. In most situations, this type of deed is prepared by a mortgage company.

Whether you are the buyer/grantee or a seller/grantor, it is important to research local laws to fully understand all that needs to be disclosed in the deed. Some of the most common categories for disclosure include any neighborhood nuisances, neighborhood crime history, property damage risks, and major structural repairs that have been made to the home.

Special Warranty Deed

Special warranty deeds are very similar to general warranty deeds. However, special warranty only guarantees clear title for the time the property was owned by the seller. Home sellers/buyer will likely not have to use special warranty deeds as it is typically used for commercial properties rather than residential homes.

Like the other two deed types, a grant deed will show proof of a clear title and no knowledge of any issues that may impact the home's title. But, this deed type does not include a warranty that the seller defends the title against anyone else who may try to stake a claim to the property after the sale takes place.

Quitclaim Deed

A quitclaim deed provides the least amount of protection to the buyers as they don’t offer the same protections as a general deed. These types of deeds are used to transfer ownership rights of a property from one legal entity to another with no money changing hands.

Oftentimes this deed type is used to exchange a title between family members (ex: parents to children or spouse to spouse). It is also often used when transferring property ownership to trusts or LLCs, or to change the legal name written on a deed in the case of a name change.

While titles and deeds are often thought to be the same thing, their true legal meaning is quite different. Title is a term for stating that you have ownership rights to a property. The deed is the official legal document that declares and proves evidence of the title.

Once you have an understanding of the differences between a title and a deed, you are likely to have a much better idea of the closing process. If you have any further questions or are not sure about all that is involved, reach out to an experienced real estate agent who can help you through the process.

Need agent support for your home sale or purchase? Contact us at SimpleShowing! Not only will you get real estate guidance from one of our local agents, but both buyers and sellers can save on their transactions with our low 1% listing fee and our buyer refund incentive. Let us know how we can help!

Understanding the differences between a title and a deed is crucial when navigating the world of real estate transactions. The house title refers to the right of ownership, which is verified through public records and encapsulates the history of the property's title. On the other hand, the property deed, particularly a bargain and sale deed, is the actual physical document transferring ownership rights from the seller to the buyer.

A title company plays a significant role in the entire process. Not only do they conduct a thorough search to confirm the property's title is clear of any issues, but they also typically provide the necessary title insurance policies. An owner's title insurance protects the buyer from any unseen errors in the title's history, whereas a lender's title insurance policy safeguards the lender's interest in the property.

Lastly, don't underestimate the importance of title insurance. Despite the rigorous public records search conducted by the title company, issues can arise post-sale, threatening your ownership rights. A sound owner's title insurance policy will provide an essential safety net in these circumstances, reinforcing the stability of your house deed and sale deed. Thus, distinguishing between a title and deed, and understanding the protection that title insurance offers, is indispensable for a secure and smooth real estate transaction.

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Home » Must Knows » Legal » What is a title deed?

What is a title deed?

what is a ghost title deed

The term title deed , is often referred to as the sale deed . We examine whether the two things are one and the same.

Table of Contents

Documents that prove the buyer’s ownership over a specific immovable property are known by various names. While it is sometimes called the sale deed, it is also often referred to as the title deed . Now, are sale deed and title deed different? In case they are different, what is the difference between the two documents? We try to clear the confusion over this recurring question among buyers.

See also: All about mutation of property

Title deed: meaning

Among the many meanings, a title is also described as the ‘legal right to own something, especially land or property; the document that shows you have this right’, by the Oxford Dictionary.

Simply put, title deed is that documents that transfers the title of the property from one person to another. 

In real estate, when you buy a property, you attain legal ownership over the asset though a formal process known as property registration. Through this process, the ‘title’ of the property is transferred in your name. The document through which this process legally takes place, is known as the sale deed. This is precisely why the terms title deed and sale deed are often confused as synonyms.

See also: All about gift deed stamp duty

What is a title deed?

Also know all about release deed &  relinquishment deed

Difference between sale deed and title deed

Even though one helps establish the other, one major difference between the two terms is that a title is more of a concept, while a sale is always in a documentary form. Your sale deed is the title deed in the sense that it acts as a statement of your ownership over an asset. The sale deed in fact becomes a title deed, as soon as it is registered, since it acts as a proof that you now hold the ownership over a particular property. Apart from being a statement of the property titles, the sale deed serves several other purposes.

For example, a sale deed also tracks title holders of the property in question. The sale deed, for example, would carry every detail, in case the property has changed hands several times in the past.

However, there are no specific documents that could be termed as the title deed.

See also: Key legal checklist for buying a property

Legal difference

When looked at from a legal perspective, these two could be differentiated as one being an agreement, while the other a statement. The sale deed contains all the terms and conditions, based on which the buyer and the seller have agreed to enter into the transaction. This very nature grants this legal document that has to be registered in the sub-registrar’s office under the provisions of the Registration Act, 1908, the form of an agreement.

This is not true of a title deed. Although spoken through a sale deed, the title deed is a statement that only pertains to the rightful ownership over a particular property. The title deeds also speak of the rights and obligations of the owner.

Also note here that the sale deed is the document through which the tile of the property is transferred in the name of the buyer. The agreement-to-sell document doesn’t not receive the same treatment.

See also: Agreement for sale versus sale deed: Main differences

Are sale deed and title deed different?

A sale deed contains the information about a property title. A title deed is more of a concept that finds a physical form through the sale deed.

What is a deed or title?

A title refers to the legal right to own something, especially land or property, while a deed is the document that shows you have this right.

Are sale deed and agreement to sell different?

While an agreement to sell establishes the initial terms and conditions about a property transaction after the buyer and the seller reach an understanding, the sale deed is the document through which the title of the property is transferred in the name of the buyer.

What is meant by title deed?

In real estate, title deed is the document that transfers the property ownership from one person to another.

What is title deed in India?

Title deeds are used in India to transfer property ownership. Sale deed is a type of title deed, for example.

What is the importance of title deed?

Title deed is highly crucial to establish property ownership in the court of law.

Is sale deed and title deed the same?

Sale deed is a type of tile deed.

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An alumna of the Indian Institute of Mass Communication, Dhenkanal, Sunita Mishra brings over 16 years of expertise to the fields of legal matters, financial insights, and property market trends. Recognised for her ability to elucidate complex topics, her articles serve as a go-to resource for home buyers navigating intricate subjects. Through her extensive career, she has been associated with esteemed organisations like the Financial Express, Hindustan Times, Network18, All India Radio, and Business Standard.

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What is a Title Deed of Property? Meaning and Difference between Title and Deed

Updated on : Oct 31st, 2022

10 min read

Title deeds of the lands are documents used in real estate in India. The title deeds of an immovable asset convey a person’s ownership over such an asset to the public. It helps buyers verify whether the seller of the property is the owner and has the right to sell it. The title deeds must be complete and provide all necessary information about the property to be purchased for a smooth sale transaction.

A title deed is a formal document defining how the property is inherited, owned, transferred or allotted by an authority. It includes information about how much land a person owns or the rights of a person over land. The land ownership rights of one person are transferred to another person through title deeds.

The title deeds provide information about a property, such as the owner of the property, what rights or privileges the owner has, description and location of the property. The title deeds are usually registered and deposited with the Sub-Registrar Offices in India, where the property allotment/sale transaction occurs.

Types of Title Deeds

A sale deed is created while selling the property to a buyer. It is a legal document through which the property owner transfers property ownership rights to the buyer for an amount. It contains the property description, the rights transferred in it, and the amount paid by the buyer to purchase the property. It must be registered with the Sub-Registrar Office for it to be legal.

A gift deed is a document through which the property owner transfers the ownership right of the property to another person out of love and affection. The property owner (known as the donor) gifts the property to a person (known as the donee), and such a person must accept the gift.

The donee does not pay any amount to the donor for the transfer of ownership rights of a property in the donee’s favour. The donee must accept the gift in the donor’s lifetime, and the gift deed of a property must be registered with the Sub-Registrar Office for it to be valid.

Mortgage Deed

Mortgage means the transfer of an interest in a property to obtain a loan advanced from a bank or financial institution. When a person takes a loan from someone, he/she must give security to the lender for assurance that in case of default in the loan repayment, the lender can recover his/her money from the security. Usually, the property is given as security for a loan.

The mortgage deed is a legal document containing the terms and conditions relating to the mortgage. It provides the lender with legal rights over the property in case of default in repayment of the loan amount. The registration of the mortgage deed is necessary for it to be legally valid. However, registration is not required in the case of a mortgage by delivery of title deeds. 

Lease/Rental Deed 

A lease deed or rent deed is executed when a person gives his/her house/building/property premises on lease or rent to another person. A lease agreement or rental agreement is an official document signed between the property owner and the tenant who takes temporary possession of the property for a defined time.

It contains the property details, the terms of the rent/lease and the amount paid for the rent/lease. The registration of a rental deed/lease deed with the Sub-Registrar Office is mandatory if the rental agreement period is more than 12 months. But, if the period of the rental agreement is within 12 months, registration is not required.

Warranty Deed

A warranty deed is a document used at the time of the sale of a property. It guarantees the buyer that the seller has the right to sell the property and the property is free of debts and liabilities. The buyer has the right to get compensation from the seller if any issues emerge.

A general warranty deed provides the maximum security for the buyer since it involves crucial guarantees or agreements transferred to the grantor. The seller’s guarantee does not cover the entire property in a special warranty deed. The seller only guarantees to the buyer the concerns that arise during the period of the seller’s ownership over the property.

Importance of Title Deeds

The title deeds of the property are crucial when trying to sell the property. The title deeds are the proof of ownership of an individual over a property. It shows that a person owns a land, a house or a flat. It also shows the encumbrances, liens or other claims on the property, if any.

A buyer will check all the title deeds, such as sale deeds, encumbrance certificates, property tax receipts, Khata certificates, etc., to check whether the owner has the right to sell the property and whether there are no liens or third-party claims over it. They also help to know if there are court judgments against the right of the owner to sell the property. Thus, it is necessary to check the title deeds of the property before purchasing it.

The seller must produce all previous documents and records about the property through which a sale deed is executed while selling a property. While registering a property, there must be a chain of documentary proof through which the property’s ownership and subsequent changes can be traced. A sale deed becomes a chain link as a title deed.

Title Deed Registration

When a person buys a property, such as land, house or flat, he/she needs to go through a formal process known as property registration to get legal ownership of the property. Even when a person wants to gift a property, a gift deed must be done by that person to transfer the ownership of the property to the other person. The gift deed and sale deed is the title deed of the property through which a person gets ownership of the property. 

The gift deed and sale deed must be registered with the Sub-Registrar Office of the area where the property is located. The sale deed or gift deed becomes a title deed when registered and acts as proof of the buyer’s ownership. Without registration, the title deed has no value, and there will be no transfer of ownership.

What is the Difference Between Property Title and Deed?

Meaning .

The title refers to ownership of something. It can be a title in a job or a title of a property. Titles can be held by an individual or two or more persons. Titles can also be held by organisations, companies and trusts where all parties share the title rights of responsibility and ownership.

Deeds are the means through which titles are transferred. A deed is a legal document transferring the ownership or title of a property from one individual to another individual or organisation. A deed must be signed and registered by the person transferring and the person buying the property rights or title.

Physical aspect

There are no physical documents or the physical shape of a title. It is a concept. A title is a description of a person’s ownership over something. It is a term for a person having ownership of a property. It indicates to the public the legal ownership rights of a person.

The deed is always in a physical form, mainly in the form of a document. It is a legal statement that describes the title of the property owner. When the title is transferred through a sale or gift, it must be transferred through the deed. After the purchase or gift of a property and its registration, the buyer will receive the sale deed or gift deed in a documentary form which will confer the title on the buyer.

A title is a legal right conferring the ownership rights or transfer of interest to others through a deed. It is descriptive of the property owner. It is a way of saying to others that a person owns something and has the right to use the property.

A deed is the evidence of ownership of a property or the transfer of ownership in a property. It is a legal document describing the title, i.e., a person’s ownership. A deed is a vehicle through which the title, i.e. ownership, is transferred from one person to another. 

An imperfect deed does not make a title imperfect, meaning the imperfect deed will not affect the ownership of a person. However, a defective title makes a deed invalid. If the title is defective, i.e. a person does not have ownership, the transfer of title through a deed will not be valid, and it will be considered invalid. 

Title Deed Property Search

During the purchase of a property, the buyer usually does a title search of the property. A title search is a process of searching and verifying the public records affecting the ownership/title of the property.

All records/deeds relating to the property will be searched, including sale deeds, mortgages, tax payments, wills, etc. The title examiner, usually an advocate, will determine the property’s legal owner and what debts are owed against the property after the search is complete.

The title examiner will determine if the property has a clear title, i.e., if the seller has the right to transfer/sell the property. During the sale of the property, the seller signs the sale deed, transferring the ownership/title of the property to the buyer.

Frequently Asked Questions

What is the title deed of property.

The title deeds of a property are the legal documents relating to the property. They are the proof of the ownership rights of a person over the property and how the person obtained the ownership of the property. It often includes information on the transfer of ownership of the property and on how much land an individual has and their rights over that land.

How to get a title deed of the property in India?

The title deeds of a property can be obtained from the property owner. The property owner will have the title deeds of the property. It can also be obtained from the Sub-Registrar Office, where the property owner registers the property in his/her name. When the property owner has taken a loan on the property, the title deeds will be with the bank or the lender from whom the loan is obtained. 

What is the title deed of land?

A title deed of land is a legal document for evidencing the sale and transfer of land ownership in the buyer’s favour. It contains the details of the land owner, the extent of land he/she owns, and how the land owner obtained ownership over the land. 

How long does the title deed take?

It usually takes around 4-5 working days to obtain the title deeds of a property from the office of the Sub-Registrar, where the seller obtains the ownership rights over the property in his/her favour through registration of the title deeds.

Disclaimer: The materials provided herein are solely for information purposes. No attorney-client relationship is created when you access or use the site or the materials. The information presented on this site does not constitute legal or professional advice and should not be relied upon for such purposes or used as a substitute for legal advice from an attorney licensed in your state.

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Removal of restrictions - I

Removal of restrictions relates to the process of amendment, suspension or removal of obsolete conditions, obligations, servitudes or reservations and related matters from the registered title deeds of a particular property. There is a plethora of reasons that orchestrate the process of removal of restrictions.

The restrictive conditions relate to the following spectrum of land use matters:

  • A restrictive condition or servitude registered against the title deed of a particular land parcel;
  • A provision of a law relating to the establishment of townships or town planning;
  • A provision of a by-law or regulation relating to a town planning scheme, etc.;
  • A provision of a town planning scheme and a restrictive condition or servitude registered against the title deed of a particular land parcel; and
  • A provision of a town planning scheme and a provision of a law relating to the establishment of a townships or town planning.

Conditions of title are those contained in deeds of transfer, deeds of grant, certificates of ownership, quitrent grants, permission to occupy certificates and other forms of ownership registered in the Deeds Office. The purpose of title restrictions is mainly to protect the amenity and character of a particular land development area.

In Van Rensburg No and another v Naidoo No and others, Naidoo No and others v Van Rensburg No and others (155/09,455/09) [2010] ZASCA 65, [2010] 4 all SA 398(SCA); 2011 (4) SA 149 (SCA) (26 May 2010) the court confirmed the view of the Appeals Court in Ardcornnel Investments (Pty) Ltd that restrictive conditions are imposed for the benefit of all the other erven in a township and are inserted in the respective title deeds for the public benefit as well as to preserve the essential character of a township. It follows that when an owner removes such a condition, the rights of other owners in the township are diminished or extinguished.

Title deed restrictions are for the reciprocal benefit of the owners in a township; thus, each erf is simultaneously burdened or encumbered thereby.

The removal process solely focuses on restrictive conditions and not benefit conditions. The former are basically characterised by distinctive phrases such as “Subject to...”, “Onderhewig aan...”, “The owner of the lot shall...”, “Except...” or “No...”. while the latter are distinguished by the expressions such as “With the benefit of...”, “Met die voordeel van...” or “With the use of...”

The process basically involves an approval phase and publication of the approval in the Provincial Gazette as well as a registration phase to be complete. In short, an application must be lodged by the land owner or by the controlling authority, e.g. a municipality, in terms of the relevant legislation and after approval by the relevant administrator, tribunal or controlling authority the owner or municipality, must lodge an application for endorsement of the relevant title deeds with the Registrar of Deeds regarding such removal.

The application may relate to any of the following acts of registration:

  • Amendment of a condition;
  • Suspension of a condition;
  • Relaxation of a condition; and
  • Permanent removal of a condition.

Presently the removal of restrictions remains one of the most abstract and perplexing areas of planning law due to the changes ushered on the one hand by the advent of the constitutional epoch on 27 April 1994, more especially the assignment of the Removal of Restrictions Act 84 of 1967 to the respective provincial governments in terms of Section 235(8) of the Interim Constitution of the Republic of South Africa No 200 of 1993 (Proclamation R160 Government Gazette 16049, 31 October 1994); its subsequent amendment and repeal in different provinces; the advent of Section 47 of the Spatial Planning and Land Use Management Act 16 of 2013 and its relative Municipal Planning By-Laws on the other.

Some Provinces still apply the Removal of Restrictions Act 84 of 1967 and others have enacted their unique legislation in lieu thereof.

The quandary of transitional measures in the midst of these nuances remains a menacing challenge to the proper conception and application of the process.

Consequently there are divergent procedures relating to removal of restrictions nationwide. It is therefore at the backdrop of the foregoing dynamics that the aspect of removal of restrictions must be conceived.

There are three distinct methods for removal of restrictions, namely:

  • Removal in terms of a Court Order in which case a rule nisi is issued by the High Court for the expungement of title restrictions;
  • Removal in terms of legislation; and
  • Removal in terms of a notarial agreement between the administrator, council or tribunal and the affected land owner.

This article focuses on the second method, namely removal in terms of legislation. It must be highlighted here that in the current planning dispensation the legislation refers to National Legislation, Provincial Legislation and Municipal Legislation(By-Laws). As far as removal of restrictions by means of legislation is concerned the following authoritative framework provides a basis for application:

  • Section 2 and 3(1) the Removal of Restrictions Act 84 of 1967;
  • Section 6 of the Gauteng Removal of Restrictions Act 3 of 1996;
  • Section 59(1) of the Northern Cape Planning and Development Act
  • Section 60 of the KwaZulu-Natal Planning and Development Act;
  • Section 3(2) of the Less Formal Townships Establishment Act 113 of 991;
  • Section 34 of the Development Facilitation Act 67 of 1995;
  • Section 7(1) of the Upgrading of Land Tenure Rights Act 112 of 1991;
  • Section 49(6) of the South African National Roads Agency Limited and National Roads Act 7 of 1998;
  • Section 11(9) Advertising of Roads and Ribbons Development Act by-law;
  • Section 31(7) of the National Heritage Resources Act 25 of 1999;
  • Section 47(1) of the Spatial Planning and Land Use Management Act 16 of 2013 (SPLUMA); and
  • Various Municipal Planning By-Laws and Ordinances.

In Camps Bay, Ratepayers and Residents Association and Others v Minister of Planning, Culture and Administration, Western Cape 2001(4) SA294 (C), the judge pointed out that one or more of the following central factors must underpin any feasibility study of removal of a restriction:

  • It must be desirable to remove the restriction in the interests of the public;
  • It must be desirable to remove the restriction in the interests of an establishment;
  • It must be desirable to remove the restriction in the interests of a development;
  • It must be desirable to remove the restriction in the interests of any area.

Any removal, amendment or suspension of a restrictive title deed condition must be in accordance with section 25 of the Constitution of the Republic of South Africa, 108 of 1996 in so far as it implies a deprivation of land rights.

Over and above the aforementioned factors Act 84 of 1967 further states that other factors include the fact that the land must be required for ecclesiastical purposes, public purposes by the State or Local Authority, erection of any building by the State of Local Authority and any other incidental purpose relating to the above.

In the current dispensation removal of restrictions must be understood within the purview of Section 47 of SPLUMA which reads as follows:

  •  A restrictive condition may, with the approval of a Municipal Planning Tribunal and in the prescribed manner, be removed, amended or suspended.
  • in accordance with section 25 of the Constitution and this Act;
  • with due regard to the respective rights of all those affected, and to the public interest; and
  • in the prescribed manner, if such removal, amendment or suspension will deprive any person of property as contemplated in section 25 of the Constitution .

Section 47(5) further states that "an applicant at whose instance a restrictive condition is removed, amended or suspended in terms of this Act, must, within the prescribed period and in the prescribed manner, apply to the Registrar of Deeds concerned for the appropriate recording of such removal, amendment or suspension, and the Registrar of Deeds must in the prescribed manner record such removal, amendment or suspension...”

Before a further exploration of the cardinal dynamics that influence removal of restrictions, it is extremely crucial to take cognisance of various existing mechanisms or processes that govern the process within the purview of South African Law.

This background is of utmost importance if one aims to unravel the rigmarole of removal of restrictions in the SPLUMA and Municipal By-Law dispensation.

The process focuses on the following key aspects: The removal of any restriction, obligation, servitude or reservation which relates to the subdivision of the land or the purpose for which the land may be used in connection with the erection of structures or buildings on or the use of the land, which is binding on the owner of the land arising out of-

  • any restrictive condition or servitude which is registered against the title deed or leasehold title of such land; or
  • a provision of a by-law or of a town-planning scheme; or
  • the provisions of a title condition contained in the schedule to the proclamation of a township; or
  • the provisions of a law relating to the establishment of townships or town planning.

Wiseman Bhuqa, Law Lecturer Legal Support & Deeds Training

Note - for Provincial examples see: Removal of restrictions - II (KwaZulu-Natal) Removal of restrictions - III (Gauteng) Removal of restrictions - IV (Mpumalanga) Removal of restrictions - V (Free State, Eastern Cape and Limpopo) Removal of restrictions - VI (Western Cape) Removal of restrictions - VII (Northern Cape and North West)

what is a ghost title deed

Reader Comments:

Thank you for the informative discussion. An aspect that is stil unclear is who must sign the notarial document for the removal of an obsolete title condition where the condition was originally done in favour of the General Public. According to the Municipality, who consent to the removal in terms of SPLUMA, it is the Premier of the Province (Gauteng), but the office of the Premier indicated that they have never done something like this and is now not responding to a request for reasons.

Any help will be appreciated, thank you.

In terms of the RCR -- The Premier

Do I need to lodge a transfer duty receipt with my Section 68 application, for a condition that has lapsed due to time? The condition states that a dwelling be erected within 18 months after registration. This time period has lapsed and the dwelling has been erected. Thanking you in advance.

I need help with doing a re-zoning of a property in the Northern Cape - Springbok. May I have an example of the form? Do you perhaps know what Section 15 & 16 of the Nama Khoi Municipal By-Laws refer to - this is what the Deeds Office wants us to comply with. 

SPLUMA excludes servitudes from the definition of restrictive conditions. Is one then precluded from removing restrictive servitudes in terms of legislation? If so do you need a court order?

Leave a comment:

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    A deed of title, or title deed, is a detailed legal document that transfers the title of real estate from one individual to another. Full ownership of a piece of real estate is provided to the new owner. Usually, such a transfer would occur through a standard real estate sale; however, a title may be transferred in other ways. ...

  11. Deed vs Title: What's the Difference?

    Deeds Titles; Physical Document: A deed is a physical legal document that provides evidence of the transfer of ownership. Conceptual Right: A title is not a physical document but a conceptual term that refers to the legal ownership of property, including the right to use, possess, and dispose of it. Recording: After the deed is executed and delivered, it is generally recorded with the ...

  12. Check the Title Deed

    The title deed is a mine of crucial information relating to the property, its history, and conditions attaching to it. So check it thoroughly, it's well worth the effort - You may well pick up valuable pointers to the property's value, such as what the seller paid for it and when, things that could affect what it's actually worth to you ...

  13. Property Deed Basics

    In real estate, the terms "title" and "deed" can be confusing. Title is the property right. The deed conveys that right. Real estate title is not a document. Rather, it is the strength of one's ownership claim. An unassailable ownership claim, or "clear title," relies on a clear chain of grantors and grantees that one can track from the ...

  14. What is Title Deed of Property? All You Need to Know!

    A title deed is a legal document that outlines the inheritance, ownership, transfer, or allocation of the property by a government body. It contains details on a person's ownership rights or the amount of land they own. Title deeds are used to transfer a person's ownership rights over land to another person.

  15. Lost or destroyed

    Amendment of regulation 68. 2. Regulation 68 of the Regulations is hereby amended-. " (1) If any deed conferring title to land or any interest therein or any real right, or any registered lease or sublease or registered cession thereof or any mortgage or notarial bond, is lost or destroyed and a copy is required for any purpose other than one ...

  16. Extending clauses

    Extending clauses in conventional deeds are prescribed by the regulations to the Deeds Registries Act 47 of 1937, i.e. forms "TT" and "UU". Form "TT" is the form utilized for the extending clause of a deed of transfer in respect of an entity of land not previously registered. Form "UU" is utilized for an entity of land already held under a title.

  17. Deed Vs. Title: What's The Difference?

    The two terms might not seem very different, but it's important to understand the nuances of deeds vs titles. Both relate to ownership of a property, but a deed is a physical document, while the ...

  18. Title vs Deed: What's the Difference?

    Title is a term for stating that you have ownership rights to a property. The deed is the official legal document that declares and proves evidence of the title. Once you have an understanding of the differences between a title and a deed, you are likely to have a much better idea of the closing process.

  19. Qualification of conditions

    Pivot Deed The pivot deed is a reference to general conditions contained in a specific deed. The pivot deed refers you to every deed where the conditions have changed. Where a title deed does not contain a pivot deed, no reference thereto must be made and will thus not change as discussed infra.

  20. Title Deed: Meaning and Difference Between Title Deed and Sale Deed

    Even though one helps establish the other, one major difference between the two terms is that a title is more of a concept, while a sale is always in a documentary form. Your sale deed is the title deed in the sense that it acts as a statement of your ownership over an asset. The sale deed in fact becomes a title deed, as soon as it is ...

  21. Description

    It will also not be necessary to update the title deed to reflect the new name of the company. However, where there is a condition in a title deed indicating that consent (for e.g. transfer of that property) is required from a company that has changed its name, such consent must reflect both the new and former name of the company.

  22. What is a Title Deed of Property? Meaning and Difference ...

    A title deed is a formal document defining how the property is inherited, owned, transferred or allotted by an authority. It includes information about how much land a person owns or the rights of a person over land. The land ownership rights of one person are transferred to another person through title deeds.

  23. Shares in land

    The word 'share' in relation to land is defined in section 102 of the Deeds Registries Act 47 of 1937 (the Act) as meaning an undivided share. A share in land does not represent, and may not be held out to represent a defined portion of land (see section 24 (1) of the Act). One must remember that an owner who holds a share in land does not ...

  24. Removal of restrictions

    Conditions of title are those contained in deeds of transfer, deeds of grant, certificates of ownership, quitrent grants, permission to occupy certificates and other forms of ownership registered in the Deeds Office. The purpose of title restrictions is mainly to protect the amenity and character of a particular land development area.