Conveyancing is the act of transferring property to a new owner. The attorney involved in conveyancing is the person who takes the desires of the buyer and seller and translates them into legal reality. They draft the proper legal document and record appropriate deeds or similar real estate instruments. To do this, the attorney will determine what form of document is appropriate for the property transfer, who must sign, how the new owners will hold title, exactly what interests in the property will be conveyed, and more.
What Are Deeds?
A deed is a legal document that transfers ownership of a real estate. The deed usually:
- Identifies the buyer (grantee) and seller (grantor)
- Identifies the purchase price
- Provides a legal description of the property
- Is signed by the person transferring the property. Note: A notary public must notarize the seller's signature.
Types of Deeds
There are two types of deeds commonly used in real estate transactions: warranty deeds and quitclaim deeds.
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.
Another way of deed transfer is through a quitclaim deed. In such cases, the property owner transfers any ownership interest the grantor/seller has in the real estate property, 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," while a quitclaim deed says "I'm giving you whatever interest I have in this property, but I'm not making any promises about it. My title might not be good and someone else might even own the property but whatever I have is now yours."
Forms of Title - Joint Tenancy and Tenancy in Common
When two or more people purchase property together, the real estate lawyer must also determine how they will take title, commonly asking whether they wish to hold the property as joint tenants or as tenants in common. This decision makes a great difference on how the land is treated upon the death of a co-owner.
Note: the word "tenant" in the terms "joint tenant" or "tenant in common" is an old English law term that in this context merely means "owner."
A joint tenancy involves the right of survivorship. This means that when one joint tenant dies, that owner's share passes automatically to the surviving joint tenants. This happens whether or not the deceased owner had a will. In fact, it happens even if the deceased owner's will attempts to leave their interest in the land to someone else.
The joint tenancy is a popular form of co-ownership between married couples, because there is no need for a will or probate of the joint tenancy land, which can save significant time and money.
A small number of states also recognize a "tenancy by the entirety," which is a form of joint tenancy (with the right of survivorship) that can only be created between married couples.
Tenancy in Common
Tenancy in common is a form of shared ownership where two or more people own land without the right of survivorship. Thus, 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.
Recording the Deed
The final (and extremely important) step in the conveyancing process is recording the deed, mortgage, or other instrument in the county where the real property is located. The name of the county office involved with recording real estate instruments varies from state to state; it is commonly called the county recorder's office, land registry office, registrar of titles or register of deeds.
Recording is important as the owner's interests are not fully protected unless and until the document can be found in public records. And, the sequence in which deeds and other documents are recorded also determines the priority of various claims against the property.
Get Legal Help With Your Questions About Transferring Property
Property transfers frequently involve the largest financial transactions in a person's life. The decisions you make during this process will likely impact you for years to come. For this reason, it's a good idea to get in touch with a local real estate attorney to discuss your plans and get the proper legal advice.