Deeds

A deed is the document that transfers ownership of real estate.  It contains the names of the old and new owners and a legal description of the property, and is signed by the person transferring the property.  You can't transfer real estate without having something in writing, which is almost always a deed.

Quitclaim Deeds are simple and inexpensive means of selling or transferring land or solving real estate deeds problems.

When a person signs a Quitclaim Deed, they surrender whatever rights they have to the property.  Essentially, they walk away and have no responsibility to the purchaser.  By comparison, a Warranty Deed, where the seller "grants, sells and conveys the property to the buyer ... to have and to hold it ... forever, and binds seller and seller's heirs to warrant and forever defend the property to the buyer," obligates the Seller to provide clear title to the buyer.

Quitclaim Deeds are useful in clearing title in limited circumstances, such as when there is a question about whether a particular heir has a claim to the property, or where a person may have acquired title by adverse possession.  In most cases, however, it is preferable to use another kind of deed.

In most land sales, the buyer (and the buyer's lender, if any) expect the seller to convey a valid, 'clean' title.  The seller warrants to the buyer that the seller actually owns the land and has the right to sell it.  This is called a "warranty of title," and it is conveyed via a Warranty Deed.   There are two kinds of Warranty Deeds: the Special Warranty Deed, and the General Warranty Deed.

When a seller executes a Special Warranty Deed, the seller warrants only that he has not personally done anything to adversely affect the title being conveyed.   For example, if the seller had already sold the property to someone else, had granted someone else an undisclosed option to purchase, or had permitted an undisclosed lien to be placed on the property, the seller would be in breach of the warranty of title.

However, if the title is flawed because someone else forged a prior owner's signature on a deed, or sold the property in violation of a court order, the seller would not be held accountable because the seller did not personally cause the title defect.  For this reason, a seller may prefer to offer a Special Warranty Deed.

Buyers, however, prefer to have a General Warranty Deed.  When a seller makes a general warranty, the seller warrants that not only has the seller not personally done anything to adversely affect the title being conveyed, but neither has anyone else who has ever owned the property.  If the buyer's title is lost or impaired because of a previously unknown defect in the title, the seller will be liable to the buyer for the loss even if the seller had no reason to know of the forgery.

Texas law recognizes another form of deed which is neither a Quitclaim Deed nor a Warranty Deed, but rather something in between.  Like a Warranty Deed, a Deed Without Warranty uses the "grant, sell and convey" language to establish title in the buyer.  Like a Quitclaim Deed, though, a Deed Without Warranty makes no warranties or covenants of title, so the seller has no liability for title defects.

A Deed Without Warranty will rarely be appropriate in a sale transaction; however, because it offers greater protection to the buyer without any additional risk to the seller it should be considered as an alternative whenever a Quitclaim Deed might otherwise be used.

For guidance or counsel with Deeds, contact our Law Offices at 361-288-1880.We can discuss your concerns or questions.