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A deed is a signed and usually sealed legal instrument in writing used to grant a right. Deeds have historically been part of the broader category of instruments under seal, requiring only the affixing of a common seal to render them valid. Today, however, deeds are instruments in solemn form which require the author's signature and a number of attesting witnesses. Deeds are also referred to as agreements under seal, contracts by deed, specialties, or indentures and are often used by lawyers when a very formal document is required.^[1]

Deeds can be described as contract-like as they require the mutual agreement of more than one person. Deeds can therefore be distinguished from covenants, which being also under seal, are unilateral promises. However, a deed differs from a simple contract in that it is enforceable without consideration, has a liability limitation period of double that of a contract, and allows for a third party beneficiary to enforce an undertaking in the deed, thereby overcoming the doctrine of privity.^[2] In its narrowest sense, a deed is any formal document that confirms or transfers interest or right of ownership (title) to an asset from one person to another, often using a description of its metes and bounds, e.g., conveyances, transfers, mortgages, charges, or leases. However, by the general definition, powers of attorney, commissions, patents, and even diplomas conferring academic degrees are also deeds.

Traditionally and under common law, to be valid and enforceable, a deed must fulfill several requirements:

It must state on its face it is a deed, using wording like "This Deed..." or "executed as a deed".
It must indicate that the instrument itself conveys some privilege or thing to someone. This is indicated by using the word hereby or the phrase by these presents in the clause indicating the gift.
The grantor must have the legal ability to grant the thing or privilege.
The grantee must have the legal capacity to receive it.
It must be executed by the grantor in presence of the prescribed number of attesting witnesses; this is known as being in solemn form.
A seal must be affixed to it. Originally, signatures were optional, but most jurisdictions made seals outdated, and now the grantor and witnesses signatures are primary.
It must be delivered to (delivery) and accepted by the grantee (acceptance).
It should be properly acknowledged before a competent officer, most often a notary public.^[3]

Conditions attached to the acceptance of a deed are known as covenants. A deed indented is one executed in two or more parts according to the number of parties, which were formerly separated by cutting in a curved or indented line known as the chirograph.^[4] A deed poll is one executed in one part, by one party, having the edge polled or cut even, and include simple grants and appointments.

[edit] Deed types

[edit] General and special warranty

Main article Warranty deed

The original 1636 Indian deed creating the State of Rhode Island signed by Native American Chief Canonicus to Roger Williams

In the transfer of real estate, a deed conveys ownership from the old owner (the grantor) to the new owner (the grantee), and can include various warranties. The precise name of these warranties differ by jurisdiction. However the basic difference between them is the degree to which the grantor warrants the title. The grantor may give a general warranty of title against any claims, or the warranty may be limited only to claims which occurred after the grantor obtained the real estate. The latter type of deed is usually known as a special warranty deed. While a general warranty deed was normally used for residential real estate sales and transfers, special warranty deeds are becoming more common and are more commonly used in commercial transactions.

[edit] Bargain and sale deed

Main article Bargain and sale deed

A third type of deed, known as a bargain and sale deed, implies that the grantor has the right to convey title but makes no warranties against encumbrances. This type of deed is most commonly used by court officials or fiduciaries that hold the property by force of law rather than title, such as properties seized for unpaid taxes and sold at sheriff's sale, or an executor.

[edit] Quitclaim deed

Main article Quitclaim deed

A so-called quitclaim deed is (in most states) actually not a deed at all--it is actually an estoppel disclaiming rights of the person signing it to property.

[edit] Deed of trust

In some jurisdictions, a deed of trust is used as an alternative to a mortgage. A trust deed is not used to transfer property directly. It is commonly used in some states, California, for example, to transfer title to land to a “trustee”, usually a trust or title company, which holds the title as security ("in escrow") for a loan. When the loan is paid off, title is transferred to the borrower by recording a release of the obligation, and the trustee's contingent ownership is extinguished. Otherwise, upon default, the trustee will liquidate the property with a new deed and offset the lender's loss with the proceeds.

[edit] Deeds as alternatives to bankruptcy

Deed of arrangement - document setting out an arrangement for a debtor to pay part or all outstanding debts, as an alternative to bankruptcy; (Australian law).^[5]

Deed of assignment - document in which a debtor appoints a trustee to take charge of property to pay debts, partly or wholly, as an alternative to bankruptcy; (Australian law).^[6]

[edit] Parts

The main clauses of a warranty deed conveyancing land are:

Premises - date, names and descriptions of parties, recitals, consideration, grant, full description of the thing granted, and any exceptions
Habendum - clause indicating the estate or interest to be taken by the grantee^[7]
Tenendum - "to have and to hold", formerly referring to the tenure by which the estate granted was to be held, though now completely symbolic
Redendum - reserves something to grantor out of thing granted, such as a rent, under the formula "yielding and paying".
Conditions
Warranty - grantor warrants the title to the grantee
- general: when the warrant is against all persons
- special: when it is only against the grantor, his heirs and those claiming under him
Covenants - binding limitations or promises
Conclusion - execution and date
- Testing clause - sets out details of when and where and by whom the deed was signed and identifies the witnesses^[8]
- Testimonium clause - attests to the due execution of a deed or instrument.
  - Example: In Witness Whereof, the parties to these presents have hereunto set their hands and seals.

[edit] Recording

Main article Recording (real estate)

Usually the transfer of ownership of real estate is registered at a cadastre in the United Kingdom. In most parts of the United States, deeds must be submitted to the Recorder of deeds, who acts as a cadastre, to be registered. An unrecorded deed may be valid proof of ownership between the parties, but may have no effect upon third-party claims until disclosed or recorded. A local statute may prescribe a period beyond which unrecorded deeds become void as to third-parties, at least as to intervening acts.

[edit] Joint ownership

Ownership transfer may also be crafted within deeds to pass by demise, as where a property is held in concurrent estate such as "joint tenants with right of survivorship" (JTWROS), "tenants by the entirety". In each case, the title to the property immediately and automatically vests in the named survivor(s) upon the death of the other tenant(s). In most states joint tenancy with the right of survivorship require all owners to have equal interests in the property. Joint ownership may also be by tenants in common. In most states joint ownership is presumed to be in common unless the parties are married and the deed so states or the deed sets for joint tenants with right of survivorship. Upon death, the decedent's share passes to his or her estate. A life estate is the right to use, possess and enjoy the property for a period of time measured by the natural life of a person or persons. When all life tenants are dead, the remainderman holds full title.

[edit] Pardon as deed

In the United States of America, a pardon of the President was once considered to be a deed and thus needed to be accepted by the recipient. This made it impossible to grant a pardon posthumously. However, in the case of Henry Ossian Flipper, this view was altered when President Bill Clinton pardoned him in 1999.

[edit] Title deed

In the United Kingdom, England and Wales operate a 'property register'. Title deeds are documents showing ownership, as well as rights, obligations, or mortgages on the property. Since around 2000, compulsory registration has been required for all properties mortgaged or transferred. The details of rights, obligations, and covenants referred to in deeds will be transferred to the register, a contract describing the property ownership.

At common law, ownership was proven via an unbroken chain of title deeds. The Torrens title system is an alternative way of proving ownership. First introduced in South Australia in 1858 by Sir Robert Torrens and adopted later by the other Australian states and other countries, ownership under Torrens title is proven by possession of a certificate of title and the corresponding entry in the property register. This system removes risks associated with unregistered deeds and fraudulent or otherwise incorrect transactions. It is much easier and cheaper to administer, lowering transaction costs. Some Australian properties are still conveyed using a chain of title deeds - usually properties that have been owned by the same family since the nineteenth century - and these are often referred to as 'Old System' deeds.

[edit] Wild deeds

A deed that is recorded, but is not connected to the chain of title of the property, is called a wild deed. A wild deed does not provide constructive notice to later purchasers of the property, because subsequent bona fide purchasers can not reasonably be expected to locate the deed while investigating the chain of title to the property.

[edit] See also

Wikimedia Commons has media related to: Deeds

Look up deed in Wiktionary, the free dictionary.

[edit] References

^ "Glossary", Business Law Online, ed. Victoria University, s.v. "Deed", retrieved on 13 June 2009: [1].
^ Andrew Griffiths, Contracting With Companies, (London: Hart Publishing, 2005), 7.
^ Lectlaw, s.v. "deed", retrieved 19 May 2009. [2].
^ Frederic Jesup Stimpson, Glossary of Technical Terms, Phrases, and Maxims of the Common Law, s.v. "Deed" (Boston: Little, Brown and Co., 1881), 108.
^ "Glossary", The Law Handbook Online, retrieved on 11 June 2009: [3]
^ Ibid.
^ Stewart Rapalje and Robert L. Lawrence, eds., A Dictionary of American and English Law, s.v. "Habendum" (Jersey City, N.J.: F.D. Linn, 1888), 589.
^ "Scots Land Law Glossary/Dictionary", Scottish Law Online, retrieved on 21 June 2009: [4]

[0] "Glossary", Business Law Online, ed. Victoria University, s.v. "Deed", retrieved on 13 June 2009: [1].

[1] Andrew Griffiths, Contracting With Companies, (London: Hart Publishing, 2005), 7.

[2] Lectlaw, s.v. "deed", retrieved 19 May 2009. [2].

[3] Frederic Jesup Stimpson, Glossary of Technical Terms, Phrases, and Maxims of the Common Law, s.v. "Deed" (Boston: Little, Brown and Co., 1881), 108.

[4] "Glossary", The Law Handbook Online, retrieved on 11 June 2009: [3]

[5] Ibid.

[6] Stewart Rapalje and Robert L. Lawrence, eds., A Dictionary of American and English Law, s.v. "Habendum" (Jersey City, N.J.: F.D. Linn, 1888), 589.

[7] "Scots Land Law Glossary/Dictionary", Scottish Law Online, retrieved on 21 June 2009: [4]

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