Deeds in California
When properly executed, delivered and accepted, a deed transfers title to real property from one person (the grantor) to another person (the grantee). Transfer may be voluntary, involuntary, or by act of law, such as by a foreclosure sale.
There are several requirements to a valid deed in California:
- It must be in writing;
- The parties must be properly described;
- The parties must be competent to convey and capable of receiving the grant of the property;
- The property conveyed must be described so as to distinguish it from other parcels of real property.;
- There must be a granting clause, operative words of conveyance (e.g., "I hereby grant");
- The deed must be signed by the party or parties making the conveyance or grant; and
- It must be delivered and accepted.
No witnesses or seal is required. The deed should be dated, but it is not necessary to its validity.
Any form of written instrument containing the requirements set forth above will convey title to land. A typical grant deed "I, John Doe, a single man, grant to Susan B. Roe, a widow, all that real property situated in Los Angeles County, State of California, described as follows: Lot 20, Tract 50, recorded at Page 105 of Book 8 of Maps of Los Angeles County, filed January 10, 2021. Date:
(Signed) John A. Doe"
A deed is usually executed for consideration, but this is not essential for a valid transfer. Even when consideration is given for the property, this point need not be mentioned in the deed. However, it should be noted that lack of consideration may affect the rights of the grantee as against the rights of certain third parties because the recording statutes are intended to protect bona fide purchasers.
For example, a transfer made without consideration by a grantor who is or will thereby be rendered insolvent, is fraudulent as to grantor's creditors and those creditors may have the deed set aside in a court action.
A deed does not have to be acknowledged, nor does it need to be recorded. However, both acknowledgment and recordation are part of the standard operating procedure in real estate transfers for excellent reasons.
While recording a deed does not affect its validity, it is extremely important to record since recordation protects the grantee. If a grantee fails to record, and another deed or any other document encumbering or affecting the title is recorded, the first grantee is in jeopardy. The recording system was established to show the sequence of transfers or other actions affecting property, and it is foolish to fail to avail oneself of the privilege of recording.
Possession of property also gives notice of the rights of persons in possession. A person buying real property should not rely entirely on a title policy but should investigate to see if somebody is in possession and find out what their rights are. The occupants might be in possession under a partly paid contract of purchase and sale, or they could be in possession under a lease that gave them an option to buy.
A deed is of no effect unless delivered. But delivery in this context means more than a turning over of the physical possession of the document. The grantor must have the intention to pass title immediately. It is possible in some cases to have a legal delivery without the instrument actually being handed to the grantee, if the grantor has the requisite intent to transfer title.
Types of Deeds
- Grant Deed
A Grant Deed is a specific type of deed that transfers the interest in a property from the seller to the buyer in exchange for a previously agreed upon price.
While the grant deed guarantees that the seller owns the property entirely, it doesn't offer the buyer legal protection against any title defects such as:
• Errors on public records,
• Improper signatures,
• Undisclosed liens, and
• Boundary disputes.
- Quitclaim Deed
Quitclaim Deeds are usually used to transfer property between familiar parties, such as family members or even divorced spouses. That's because unlike other types of deeds, a quitclaim deed offers little legal protection to the grantee (the recipient of the transfer).
- Gift Deed
A grantor may make a gift of property to the grantee, and use a grant deed form or a quitclaim deed form for the purpose. Grantor may, but need not, say in the deed that grantor makes the transfer because of love and affection for the grantee.
A gift deed made to defraud creditors may be set aside if it leaves the debtor/grantor insolvent or otherwise contributes to fraud. (Uniform Fraudulent Transfer Act, Civil Code Sections 3439 through 3439.12)
- Reconveyance Deed
A reconveyance deed is an instrument conveying title to property from a trustee back to the trustor on termination of the trust. This title is held by the trustee until the note or obligation is fully paid. Then, when the beneficiary issues a "Request for Full Reconveyance," the trustee executes the reconveyance to the borrower. Termination of the trust usually occurs when the promissory note is paid in full.
- Sherrif's Deed
A sheriff's deed is a deed given to a party on the foreclosure of property, levied under a judgment for foreclosure on a mortgage or of a money judgment against the owner of the property.
The title conveyed is only that acquired by the state or the sheriff under the foreclosure and carries no warranties or representations whatsoever.
Deeds that are void and pass no title even in favor of a bona fide purchaser for value include:
- A deed from a person whose incapacity has been judicially determined;
- Forged deeds;
- A deed from a person under 18 years of age and not emancipated;
- A deed executed in blank, where the name of the grantee has been inserted without authorization or consent of the grantor; and
- A deed purely testamentary in character such as when the grantor intends that the deed not become operative until his or her death.
Deeds which are not void, but are voidable and pass title subject to being set aside in appropriate judicial proceedings include:
- A deed from a person of unsound mind whose incapacity has not been determined (Hughes v. Grandy, 78 Cal. App. 2nd, 555);
- Prior to March 4, 1972, a deed from a person over 18 years of age and under 21 years of age, except a deed from a lawfully married person 18 years of age or older (Family Code Sections 6700, 6701, 6710). Family Code Section 6701(b) limits the authority of a minor to "make a contract relating to real property or any interests therein". Since any person 18 or over, and under 21, who was lawfully married was deemed to be an adult for the purposes of dealing in property, it may be necessary to determine the legality of the marriage. If the person was married outside of California, and the marriage was valid by the laws of the state or the county in which the same was contracted, the marriage was valid in California. If the person was married in California, the age of the person will determine the procedure necessary to effect a valid marriage. (Family Code Sections 301 and 302.)