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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 omniprese ...
, a deed is any legal instrument 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) title to property. The deed has a greater presumption 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 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 contr ...
, 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 A charter is the grant of authority or rights, stating that the granter formally recognizes the prerogative of the recipient to exercise the rights specified. It is implicit that the granter retains superiority (or sovereignty), and that the re ...
, 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 Consideration is a concept of English common law and is a necessity for simple contracts but not for special contracts (contracts by deed). The concept has been adopted by other common law jurisdictions. The court in '' Currie v Misa'' declar ...
. In some jurisdictions, specialties have a liability limitation period of double that of a simple contract and allow for a third party beneficiary 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 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 omniprese ...
, 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 must have the legal ability to grant the thing or privilege, and the grantee 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 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

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 Cambrid ...
. 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 guarante ...
''. 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 An executor is someone who is responsible for executing, or following through on, an assigned task or duty. The feminine form, executrix, may sometimes be used. Overview An executor is a legal term referring to a person named by the maker of a ...
.


Quitclaim deed

A so-called '' quitclaim deed'' 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

''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 Annexation (Latin ''ad'', to, and ''nexus'', joining), in international law, is the forcible acquisition of one state's territory by another state, usually following military occupation of the territory. It is generally held to be an illegal act ...
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 for ...
, 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 (Himma ...
, Jaswant Singh of Bharatpur, as well as the rulers of Nagod State, Samthar State and the Chaube Jagirs 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 – 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'. **** Scotland: ''IN WITNESS WHEREOF these presents, consisting of this and the preceding pages, are subscribed by eat laceon the ayday of onthTwo thousand and earin the presence of ameof 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, 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 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 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 again ...
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 regis ...
system is an alternative way of proving ownership. First introduced in
South Australia South Australia (commonly abbreviated as SA) is a States and territories of Australia, 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 o ...
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 mon ...
. 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 A grant deed is used in some states and jurisdictions for the sale or other transfer of real property from one person or entity to another person or entity. Each party transferring an interest in the property, or "grantor", is required to sign it ...
* Quitclaim deed *
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 guarante ...
*
Certificate of occupancy (land tenure) In several countries, a certificate of occupancy is a legal document that gives the holder certain rights to land. These can be a part of land reform processes. In Tanzania, for example, they are equivalent to 33-year leases and grant the holder the ...


References

{{Authority control Legal documents Real property law