In
common law
In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omnipres ...
, a deed is any
legal instrument
Legal instrument is a legal term of art that is used for any formally executed written document that can be formally attributed to its author, records and formally expresses a legally enforceable act, process, or contractual duty, obligation, or ...
in writing which passes, affirms or confirms an
interest
In finance and economics, interest is payment from a borrower or deposit-taking financial institution to a lender or depositor of an amount above repayment of the principal sum (that is, the amount borrowed), at a particular rate. It is distin ...
,
right
Rights are legal, social, or ethical principles of freedom or entitlement; that is, rights are the fundamental normative rules about what is allowed of people or owed to people according to some legal system, social convention, or ethical ...
, or
property
Property is a system of rights that gives people legal control of valuable things, and also refers to the valuable things themselves. Depending on the nature of the property, an owner of property may have the right to consume, alter, share, r ...
and that is signed, attested, delivered, and in some
jurisdictions,
sealed. It is commonly associated with transferring (
conveyancing
In law, conveyancing is the transfer of legal title of real property from one person to another, or the granting of an encumbrance such as a mortgage or a lien. A typical conveyancing transaction has two major phases: the exchange of contrac ...
)
title to property. The deed has a greater
presumption
In the law of evidence, a presumption of a particular fact can be made without the aid of proof in some situations. The invocation of a presumption shifts the burden of proof from one party to the opposing party in a court trial.
There are two ...
of validity and is less
rebuttable than an instrument signed by the party to the deed. A deed can be unilateral or bilateral. Deeds include
conveyances,
commissions,
licenses,
patent
A patent is a type of intellectual property that gives its owner the legal right to exclude others from making, using, or selling an invention for a limited period of time in exchange for publishing an enabling disclosure of the invention."A ...
s,
diplomas, and conditionally
powers of attorney if executed as deeds. The deed is the modern descendant of the medieval
charter, and delivery is thought to symbolically replace the ancient ceremony of
livery of seisin.
The traditional phrase ''signed, sealed and delivered'' refers to the practice of seals; however, attesting witnesses have replaced seals to some extent. Agreements under seal are also called
contract
A contract is a legally enforceable agreement between two or more parties that creates, defines, and governs mutual rights and obligations between them. A contract typically involves the transfer of goods, services, money, or a promise to tr ...
s by deed or ''specialty''; in the United States, a specialty is enforceable without
consideration. In some jurisdictions, specialties have a
liability limitation period of double that of a
simple contract
In contract law, a ''simple contract'' is a contract made orally or in writing or both of them rather than a contract made under seal. Simple contracts require consideration to be valid, but simple contracts may be implied from the conduct of parti ...
and allow for a
third party beneficiary
A third-party beneficiary, in the law of contracts, is a person who may have the right to sue on a contract, despite not having originally been an active party to the contract. This right, known as a ''ius quaesitum tertio'', arises when the thir ...
to enforce an undertaking in the deed, thereby overcoming the doctrine of
privity
Privity is the legal term for a close, mutual, or successive relationship to the same right of property or the power to enforce a promise or warranty. It is an important concept in contract law.
Contract law
{{main article, Privity of contract
The ...
. Specialties, as a form of contract, are
bilateral
Bilateral may refer to any concept including two sides, in particular:
*Bilateria, bilateral animals
*Bilateralism, the political and cultural relations between two states
*Bilateral, occurring on both sides of an organism ( Anatomical terms of l ...
and can therefore be distinguished from
covenants, which, being also under seal, are unilateral promises.
Requirements
At
common law
In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omnipres ...
, to be valid and enforceable, a deed must meet several requirements:
* It must state on its face that 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.
* The
grantor
A grant, in law, is a transfer of property, generally from a person or other entity giving the property (the grantor) to a person or entity receiving the property (the grantee).
Historically, a grant was a transfer by deed of that which could not ...
must have the legal ability to grant the thing or privilege, and the
grantee
A grant, in law, is a transfer of property, generally from a person or other entity giving the property (the grantor) to a person or entity receiving the property (the grantee).
Historically, a grant was a transfer by deed of that which could not ...
must have the legal capacity to receive it.
* It must be executed by the grantor in presence of the prescribed number of witnesses, known as instrumentary witnesses (this is known as being in solemn form).
* In some jurisdictions, a
seal
Seal may refer to any of the following:
Common uses
* Pinniped, a diverse group of semi-aquatic marine mammals, many of which are commonly called seals, particularly:
** Earless seal, or "true seal"
** Fur seal
* Seal (emblem), a device to imp ...
must be affixed to it. Originally, affixing seals made persons parties to the deed and signatures optional, but seals are now outdated in most jurisdictions, so the signatures of the grantor and witnesses are primary.
* It must be delivered to (delivery) and, in some jurisdictions, accepted by the grantee (acceptance).
Conditions attached to the acceptance of a deed are known as
covenants. A deed indented or indenture 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. A
deed poll is one executed in one part, by one party, having the edge polled or cut even, and includes simple grants and appointments.
Deeds of conveyance
General and special warranty
![Providence, Rhode Island, Original Deed](https://upload.wikimedia.org/wikipedia/commons/1/15/Providence%2C_Rhode_Island%2C_Original_Deed.jpg)
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
In contract law, a warranty is a promise which is not a condition of the contract or an innominate term: (1) it is a term "not going to the root of the contract",Hogg M. (2011). ''Promises and Contract Law: Comparative Perspectives''p. 48 Cambri ...
. The precise name and nature of these warranties differ by jurisdiction. Often, however, the basic differences 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 to only claims which occurred after the grantor obtained the real estate. The latter type of deed is usually known as a ''special
warranty deed
A warranty deed is a type of deed where the grantor (seller) guarantees that they hold clear title to a piece of real estate and has a right to sell it to the grantee (buyer), in contrast to a quitclaim deed, where the seller does not guarant ...
''. 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.
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
A fiduciary is a person who holds a legal or ethical relationship of trust with one or more other parties (person or group of persons). Typically, a fiduciary prudently takes care of money or other assets for another person. One party, for exampl ...
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.
Quitclaim deed
A so-called ''
quitclaim deed
Generally, a quitclaim is a formal renunciation of a legal claim against some other person, or of a right to land. A person who quitclaims renounces or relinquishes a claim to some legal right, or transfers a legal interest in land. Originally a c ...
'' is (in most jurisdictions) actually not a deed at all—it is actually an
estoppel disclaiming rights of the person signing it to property.
Deed of trust
In some jurisdictions, a
deed of trust is used as an alternative to a
mortgage
A mortgage loan or simply mortgage (), in civil law jurisdicions known also as a hypothec loan, is a loan used either by purchasers of real property to raise funds to buy real estate, or by existing property owners to raise funds for any ...
. A deed of trust 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
An escrow is a contractual arrangement in which a third party (the stakeholder or escrow agent) receives and disburses money or property for the primary transacting parties, with the disbursement dependent on conditions agreed to by the transacti ...
") 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.
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).
* 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).
Sanad
![Narain 1936](https://upload.wikimedia.org/wikipedia/commons/e/e9/Narain_1936.jpg)
''Sanad'', also spelt as ''sunnud'', was a deed granted to the rulers of native
princely states in British India confirming them in their ruling position in return for their allegiance to the
British Raj
The British Raj (; from Hindi ''rāj'': kingdom, realm, state, or empire) was the rule of the British Crown on the Indian subcontinent;
*
* it is also called Crown rule in India,
*
*
*
*
or Direct rule in India,
* Quote: "Mill, who was him ...
.
Sanad of adoption
Since the extinction of the royal bloodline would be a ground for
annexation of a principality by the British, some rulers were also granted ''sanads'' of adoption. Devised as a reward for loyalty to British rule in India, especially after the
Indian rebellion of 1857
The Indian Rebellion of 1857 was a major uprising in India in 1857–58 against the rule of the British East India Company, which functioned as a sovereign power on behalf of the British Crown. The rebellion began on 10 May 1857 in the fo ...
, such deeds gave a ruler the right to adopt chosen heirs from local noble families in case of lack of direct issue. Among the rulers that were given sanads of adoption,
Takht Singh
Takht Singh, GCSI (6 June 1819 – 13 February 1873) was first the regent (1839–1841) and the final Maharaja of Ahmednagar (Himmatnagar) 1841–1843 as a result of an agreement with the British. Once he ceded Ahmednagar (Himmat ...
,
Jaswant Singh of Bharatpur, as well as the rulers of
Nagod State
Nagod State (also known as 'Nagode' and 'Nagodh') was a princely state of colonial India, located in modern Satna district of Madhya Pradesh. The state was known as 'Unchahara' from the name of Unchehara its original capital until the 18th centu ...
,
Samthar State
Samthar State was a princely state in India during the British Raj. The state was administered as part of the Bundelkhand Agency of Central India. The state was ruled by Khatana clan of Gurjars . Its capital was Samthar town, located in a leve ...
and the
Chaube Jagirs
The Chaube Jagirs, also known as 'Kalinjar Chaubes', jagir states were a group of five feudatory states of Central India during the period of the British Raj. They were a British protectorate from 1823 to 1947 and belonged to the Bagelkhand Agen ...
are worth mentioning.
Structure
The main clauses of a deed of conveyance are:
* Premises
** Parties clause – sets out the names, addresses, and descriptions (vendor/purchaser, grantor/grantee, transferor/transferee) of parties
** Recitals – narrates in chronological order the previous ownership of the property being conveyed, starting with the earliest deed of title down to the contract of sale the conveyance gives effect to
** Testatum – a command to witness which acknowledges the payment and receipt of the consideration and signals the beginning of the operative part; usually begins with "Now this Deed witnesseth"
* Operative part
** Operative clause – vendor gives effect to the contract of sale by conveying his interest in land to the purchaser
**
Parcels clause
Butts and bounds, shortened form for "abuttals and boundaries" of a property, are the boundary lines delineated between plots of land, usually those which define the end of an estate, as used in legal deeds, titles, etc. These are usually descrip ...
– clause detailing the location and description of the property being conveyed
** Habendum – clause indicating the estate (freehold, etc.) or interest to be taken by the grantee
** Tenendum – "to have and to hold", formerly referring to the tenure by which the estate granted was to be held, though now completely symbolic
** Reddendum – reserves something to grantor out of thing granted, such as 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 (or
eschatocol
An eschatocol, or closing protocol, is the final section of a legal or public document, which may include a formulaic sentence of appreciation; the attestation of those responsible for the document, which may be the author, writer, countersigner, ...
) – execution and date
** Testimonium (Scotland: ''testing clause'') – attests to the due execution of a deed or instrument.
*** Examples:
**** England & Wales: ''In Witness Whereof, the parties to these presents have hereunto set their hands and seals''.
**** Ireland: ''In Witness Whereof the parties hereto have hereunto set their hands and affixed their seals
he day and year first herein written
He or HE may refer to:
Language
* He (pronoun), an English pronoun
* He (kana), the romanization of the Japanese kana へ
* He (letter), the fifth letter of many Semitic alphabets
* He (Cyrillic), a letter of the Cyrillic script called ''He'' ...
'.
**** Scotland: ''IN WITNESS WHEREOF these presents, consisting of this and the preceding pages, are subscribed by
eat
lace
Lace is a delicate fabric made of yarn or thread in an open weblike pattern, made by machine or by hand. Generally, lace is divided into two main categories, needlelace and bobbin lace, although there are other types of lace, such as knitted o ...
on the
ayday of
onthTwo thousand and
ear
An ear is the organ that enables hearing and, in mammals, body balance using the vestibular system. In mammals, the ear is usually described as having three parts—the outer ear, the middle ear and the inner ear. The outer ear consists of ...
in the presence of
ame #REDIRECT AME
{{redirect category shell, {{R from other capitalisation{{R from ambiguous page ...
of
ddress'.
Recording
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
Recorder of deeds or deeds registry is a government office tasked with maintaining public records and documents, especially records relating to real estate ownership that provide persons other than the owner of a property with real rights over ...
, 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.
Joint ownership
Ownership transfer may also be crafted within deeds to pass by demise, as where a property is held in
concurrent estate
In property law, a concurrent estate or co-tenancy is any of various ways in which property is owned by more than one person at a time. If more than one person owns the same property, they are commonly referred to as co-owners. Legal terminolo ...
such as "joint tenants with right of survivorship" (JTWROS) or "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 requires all owners to have equal interests in the property, meaning upon sale or partition of the property, all owners would receive an equal distribution of the proceeds.
Joint ownership may also be by tenants in common (TIC). In some states, joint ownership is presumed to be as tenants 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
In common law and statutory law, a life estate (or life tenancy) is the ownership of immovable property for the duration of a person's life. In legal terms, it is an estate in real property that ends at death when ownership of the property may ...
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.
Joint tenants with rights of survivorship vs. joint tenants in common
When deeds are taken as joint tenants with rights of survivorship (JTWROS) or joint tenants in common (TIC), any co-owner can file a petition for partition to dissolve the tenancy relationship. JTWROS deed holders always take the property in equal shares; therefore, if the partnership is dissolved through partition, the proceeds must be equally distributed between all of the co-owners without regard to how much each co-owner contributed to the purchase price of the property. No credits would be allowed for any excess contributions to the purchase price. For example, if A and B co-own property as JTWROS and A contributed 80% of the purchase price, A and B would still receive equal distributions upon partition. On the other hand, TIC deed holders may be granted at partition a credit for unequal contributions to purchase price. During either partition, credits may be awarded to any co-owner who may have contributed in excess of his share to the property expenses after taking deed to the property. Credits may be allowed for utilities and maintenance; however, credits for improvements may not be allowed unless the improvements actually added substantial value to the property.
Pardon as deed
In the United States, a
pardon of the
President
President most commonly refers to:
*President (corporate title)
* President (education), a leader of a college or university
* President (government title)
President may also refer to:
Automobiles
* Nissan President, a 1966–2010 Japanese ...
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
Henry Ossian Flipper (March 21, 1856 – April 26, 1940) was an American soldier, engineer, former slave and in 1877, the first African American to graduate from the United States Military Academy at West Point, earning a commission as a ...
, this view was altered when President
Bill Clinton
William Jefferson Clinton ( né Blythe III; born August 19, 1946) is an American politician who served as the 42nd president of the United States from 1993 to 2001. He previously served as governor of Arkansas from 1979 to 1981 and agai ...
pardoned him in 1999.
Title deed
The Germany 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.
Difference between a deed and an agreement
The main difference between a deed and an agreement is that the deed is generally signed by only one person / party. Examples of a deed are deeds of hypothecation for creating charge on movable properties in favour of the banks/financial institutions etc.
An agreement by its name suggests that there should be at least two parties signing/approving the same. Examples of an agreement are agreement to sale, loan agreement etc.
At common law, ownership was proven via an unbroken chain of title deeds. The
Torrens title
Torrens title is a land registration and land transfer system, in which a state creates and maintains a register of land holdings, which serves as the conclusive evidence (termed " indefeasibility") of title of the person recorded on the regist ...
system is an alternative way of proving ownership. First introduced in
South Australia
South Australia (commonly abbreviated as SA) is a state in the southern central part of Australia. It covers some of the most arid parts of the country. With a total land area of , it is the fourth-largest of Australia's states and territories ...
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.
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 cannot reasonably be expected to locate the deed while investigating the chain of title to the property. Haupt has stated that
Because title searching relies on the grantor/grantee indexes, it's possible that a deed won't be discovered even though it was recorded. "Example: Atwood sells his land to Burns, but Burns does not record his deed. Burns later sells the land to Cooper, and Cooper records her deed. But because the previous deed (the deed from Atwood to Burns) was not recorded, Cooper's deed is outside the chain of title. In a title search, someone looking up Atwood's name in the grantor index would find no indication that Atwood conveyed the property, and nothing would lead the searcher to Cooper's deed." A deed that is outside the chain of title is called a wild deed. The general rule is that a subsequent purchaser is not held to have constructive notice of a wild deed. In the example, Cooper's title is unprotected against subsequent good faith purchasers. Suppose Atwood were to fraudulently sell the same property to another person, Dunn. A court would rule that Dunn has good title to the property, not Cooper.
A wild deed has been described as a deed "executed by a stranger to the record title hung out in the air like Mahomet's coffin." Mahomet is an archaic spelling of
Muhammad
Muhammad ( ar, مُحَمَّد; 570 – 8 June 632 CE) was an Arab religious, social, and political leader and the founder of Islam. According to Islamic doctrine, he was a prophet divinely inspired to preach and confirm the mo ...
. There is a legend that the Prophet Muhammad's coffin was suspended without visible supports, from the ceiling of his tomb, just as a wild deed just hangs there, not touching the chain of title.
See also
*
Covenant (law)
*
Deed poll
*
Grant deed
*
Quitclaim deed
Generally, a quitclaim is a formal renunciation of a legal claim against some other person, or of a right to land. A person who quitclaims renounces or relinquishes a claim to some legal right, or transfers a legal interest in land. Originally a c ...
*
Warranty deed
A warranty deed is a type of deed where the grantor (seller) guarantees that they hold clear title to a piece of real estate and has a right to sell it to the grantee (buyer), in contrast to a quitclaim deed, where the seller does not guarant ...
*
Certificate of occupancy (land tenure)
References
{{Authority control
Legal documents
Real property law