Transferring Title in Real Property

commercial law attorney McMinnville

Transferring Title in Real Property

A conveyance of real property is generally characterized as a transfer of title from one person to another by a deed.  Accordingly, a deed is a conveyance evidenced by a signed writing of the seller who transfers title to land to the buyer.  A deed must be in writing, signed by the seller, acknowledged and recorded.

There are several different types of deeds.  These vary in the amount of protection afforded to buyers.  A warranty deed provides buyers the most protection against title defects.  A warranty deed guarantees:

  1. that the seller is lawfully seized in the premises to be conveyed, known as the covenant of seizin;
  2. that the property is free from all encumbrances, except those noted within the deed
  3. that the seller has the right to convey the property; and,
  4. that the seller will defend title against all lawful claims

A warranty deed survives the natural life of the seller, and requires his/her heirs, successors, or assigns to defend title.

Another instrument used to convey property is a special warranty deed.  This indenture limits the protection afforded to the buyer to claims arising during the time in which the seller owns the property. Thus, such a deed does not purport to warrant against all persons claiming the land, but only against those who claim title under the Seller.  This type of deed is common in foreclosure scenarios.

A quitclaim deed is sufficient to convey title to real estate, but provides no guarantees, warranties or representations.  Rather, the seller is simply conveying whatever interest he/she may or may not have in real property, with no expressed or implied warranties.  This type of indenture is common within intra-family transfers where there is no consideration and the chain of title can be easily traced down the family line.

An Executor’s Deed carries out a testamentary devise within a Last Will and Testament of someone who has passed.  For an Executor’s deed to be valid, an estate must be opened. The estate itself thus becomes part of the chain. An executor’s authority to convey real property must be specifically granted within a Last Will and Testament.

When property is conveyed in Tennessee to husband and wife, it is presumed that spouses take title as tenants by entirety, unless expressly mentioned.  This means that when one spouse dies, the surviving spouse is immediately vested with the deceased spouse’s share. To effectuate this result when title is only vested in one spouse, a Deed Creating An Estate By The Entireties is proper.  Codified in Tennessee Code Annotated 66-1-109, this indenture expressly places title in both spouses, so that upon the death of either, the surviving spouse takes the interest previously held by deceased partner.

In many cases, there is no greater financial investment than real property. A title examination is always recommended before buying or selling to ensure good and marketable title.

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