Transferring Property

The legal term used to describe the act of transferring real property or title to a new owner is "conveyance."

A real estate attorney involved in conveyancing takes the wishes of the buyer and the seller and translates them into a legal document, usually a deed. The attorney will need to determine:

• What type of document is needed for this particular transfer of property?
• Who must sign?
• How will the new owners hold the title?
• Exactly what interests in the property are being conveyed?

The attorney will then draft the proper legal document and record the deed (or similar real estate document) with the correct state agency.

What Are Deeds?

A deed is a legal document that transfers ownership of real estate. The deed usually:

• Identifies the buyer (grantee) and the seller (grantor)
• Identifies the purchase price
• Provides a legal description of the property
• Is signed by the person transferring the property. A notary public must notarize the seller's signature.

Types of Deeds: Warranty and Quitclaim

There are two types of deeds commonly used in real estate transactions: warranty deeds and quitclaim deeds.

Warranty Deed: The most common way to transfer property is through a warranty deed (sometimes called a "grant deed"). A warranty deed transfers ownership and also explicitly promises the new owner that the grantor/seller holds good title to the property.

Quitclaim Deed: A quitclaim deed transfers the ownership interest the grantor/seller has in the real estate but makes no promises or guarantees about what that interest is or that title is good. Quitclaim deeds are most commonly used to clear up title problems, to transfer property between spouses after a divorce, or in informal transactions between friends or family members.

Put another way:

• A warranty deed says: "I promise that I own the property I am giving you and the title to it is good,"
• A quitclaim deed says: "I'm giving you whatever interest I have in this property, but I'm not making any promises about it. My title might not be good and someone else might even own the property, but whatever I have is now yours."

Holding Title: Joint Tenancy and Tenancy in Common

When two or more people purchase property together, the real estate lawyer must also determine how they want to hold the title. The most common options are to hold the property as joint tenants or as tenants in common. (Note: the word "tenant" in this context is an old English term that means "owner.")

This decision about how to hold title does not have a lot of influence day-to-day, but it can make a great difference in how the land is treated upon the death of a co-owner.

Joint Tenancy

A joint tenancy involves the right of survivorship, which must be stated in the grantee clause. When one joint tenant dies, that owner's share passes automatically to the surviving joint tenant. This happens whether or not the deceased owner had a will. In fact, it happens even if the deceased owner's will attempts to leave their interest in the land to someone else.

Joint tenancy is a popular form of co-ownership between married couples because there is no need for a will or probate, which can save significant time and money.

A small number of states also recognize "tenancy by the entirety," which is a form of joint tenancy with the right of survivorship that can only be created between married couples.

Tenancy in Common

Tenancy in common is a form of shared ownership in which two or more people own land without the right of survivorship. When a tenant in common dies, the deceased owner's interest passes to his or her heirs or the people named in his or her will, rather than to the other owner(s).

Recording the Deed

The final step in the conveyancing of property is recording the deed, mortgage, or other legal document in the county where the real property is located. The name of the county office that handles real estate records varies from state to state. It is commonly called the county recorder's office, but it could also be a land registry office, registrar of titles, or register of deeds.

Recording is important as the owner's interests are not fully protected unless and until the documents can be found in the public record. The sequence in which deeds and other documents are recorded is important in determining the priority of claims against the property.

Get Legal Help Transferring Property

Property transfers frequently involve the largest financial transactions in a person's life. The decisions you make during this process could impact you and your heirs. Talk with a local real estate attorney to get accurate legal advice.