DEEDS:  TRANSFERING TITLE TO REAL PROPERTY

 

A deed is a writing signed by one person, whereby title to realty is transferred and conveyed from that person to another person.

Definition of Grantor:  Person or persons deeding property to another.

Definition of Grantee:  Person or persons receiving a conveyance of property.

Types of Deeds:
1.  Quitclaim Deed: A quitclaim deed is a deed of conveyance that operates more in the way to release any ownership claim in real property.  It is intended to pass any title, interest, or claim which a person may have in real property, but does not profess that such title is valid.  It contains no warranties.  It conveys only the interest, if any, a person(s) may have in real property to another.  It is typically used to clean up title problems or is used when a conveyance is a gift or when conveying between heirs to a piece of real property.
2.  General Warranty Deed:  A general warranty deed is a deed of conveyance that contains one or more of the six warranties:  Covenant of Seisin (warranting I own it.), Covenant of Right to Convey (warranting I have the right to convey it), Covenant Against Encumbrances (warranting there are no encumbrances such as liens, easements, leases, restrictive covenants, etc... against the real property), Covenant of General Warranty (warranting that in the future, I will defend you against any lawful claims and compensate for loss resulting from a superior title), Covenant of Quiet Enjoyment (warranting you will not be disturbed in the possession or enjoyment of the real property by one with superior title to the real property), and Covenant of Further Assurances (warranting I will sign whatever is necessary to perfect title in what is being purportedly conveyed).  Most general warranty deeds use the terms of conveyance, "grant, bargain, sell, and convey" which has been defined to mean the following four warranties are made:  Covenant of Seisin, Covenant of Special Warranty of Encumbrances, Covenant of General Warranty, and Covenant of Quiet Enjoyment.  A general warranty deed is used in most real estate sales where the actual value of the real property is given for it.
3.  Special Warranty Deed:  A special warranty deed is a deed of conveyance that contains one or more of the six warranties, but warranties are limited to only the extent that the loss is caused by an action of the grantor and not by the predecessors in title.  It is typically used in bank foreclosures and by land speculators who insist on using it.
4.  Correction Deed: A correction deed may be any type of the above types of deeds.  It is used where a deed has been previously recorded with an error, and a new deed needs to be recorded to correct that error.
 
Types of Ownership and Categories of Estates:
1.  Fee Simple Absolute: Ownership is complete and of a potentially infinite duration.  This is the most complete and one of the most common forms of ownership of land.
2.  Tenants in Common: Ownership of land by 2 or more people who are conceived as owning an "undivided interest" in the real property.  The ownership interest may be equal or unequal; however, there is considered to be "one unity of possession".  All owners are deemed to be in possession of the entire estate of land and owe a fiduciary relationship to all other owners.  Absent agreement, profits are shared equally according to ownership interest.  Tenants in common may partition in kind or by sale, lease entire property and apportion lease, sell his/her interest to another, etc...  Absent wording or statutory law, a conveyance to more than one person is considered to be as tenants in common.
3.  Joint Tenants with Right of Survivorship: Ownership of land by 2 or more people where upon the death of one tenant, his/her interest passes automatically to the other tenant(s).  Possession is an undivided interest in the whole property rather than divided interests in separate parts.  Joint Tenancy is destroyed by conveyance to a third person.
4.  Tenancy by the Entirety:  Ownership of land by a husband and wife where the conveyance was to them while married to each other.  The interest of the husband or wife passes automatically upon death to the other.  Both spouses have equal right to possession.  Right of survivorship is unaffected by a conveyance to a third party.  Neither spouse may obtain judicial partition.  However, a divorce converts title to tenants in common, and a subsequent remarriage does not restore survivorship.
5.  Life Estate/Remainder:  Ownership of land is for your life or for the length of someone else's life.  The person or persons to receive the land upon the death of that life have a remainder interest in the land.
6.  Estate for a Term of Years/Remainder:  Ownership of land is for a set duration of time.  The person or persons to receive the land upon the termination of the term have a remainder interest in the land.  This type of estate is also known as a "Leasehold Estate."
7.  Fee Simple Determinable: Ownership of the land remains with a person or persons subject to a subsequent condition occurring which will automatically cut off ownership of the property and full ownership reverts back to the grantor.  Fee Simple Determinable use the following operative words:  "during", "until", "so long as", and "while".  For example, Jack conveys Oak Meadows to the City so long as the land is used as a park.  The City has a fee simple determinable.  Jack has a reversionary interest.
8.  Fee Subject to a Condition Subsequent:  Ownership of land is possibly limited in duration by a future failure of a condition to be satisfied.  This condition is usually, but not always, related to the use of the land.  This type of estate uses the following operative words:  "provided that", "on condition that", "if", "but if", and "provided however".  It does not end automatically.  For example, Jack conveys Oak Meadows to the City on the condition that it be used as a park.  The City has a fee simple subject to a condition subsequent.  Jack has a right of entry interest.
9.  Fee Subject to an Executory Limitation:  This is the same as a fee subject to a condition subsequent except that the possessory interest after the condition is broken is given to a third party.  However, this type of estate can easily run into the Rule Against Perpetuities.
 
Rule Against Perpetuities
No interest is good unless it must vest, if at all, not later than twenty-one (21) years after some life in being at the creation of the interest (measuring life plus 21 years).
 
Common Mistakes to Watch Out for in Deeds:
1.  Typographical Errors in the Legal Description
2.  Incomplete or "bad" legal descriptions
3.  Failure to State Marital Status of Grantor(s)
4.  Name(s) used for Grantor(s) differs from the names the property was deeded to.
5.  Acknowledgement Errors:  Acknowledgement differ as between indivicuals, corporations, and other entities and sometimes an incorrect acknowledgement is used.  Sometimes the acknowledgement is filled out or only partially filled out, and sometimes the notary's commission has expired at the time of execution.
6.  Names of Grantee(s) misspelled, or the type of ownership conveyed is not in accordance with grantee's wishes.
 
Differences Between a Deed and an Easement:
A deed is the conveyance of an ownership interest in land.  An easement is the conveyance of a right to use land, however, the grantee(s) still has the ownership interest in said land. 
 
Conveyances of Land.  See:
Arkansas Code Annotated Sections 18-12-101 to 18-12-607.