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In Texas real estate transactions, deeds are extremely important and there are formal conventions that pertain them. For instance, to convey title to real estate in Texas, the grantor must execute a deed in front of a notary public. The deed must also be presented to and accepted by the grantee, and then filed of record in the county clerk’s office. This final step of filing puts the public on notice of the transfer. Failure to file the deed can subject the property to future claims by third parties.
A Title vs. A Deed
Before discussing the most common types of property deeds, it’s important to explain the difference between a title and a deed. For real estate purposes, title refers to the ownership of the property. Title means you have the right to use the property. In contrast, a real estate deed is the legal document that transfers title from one person to another.
That said, it’s important to remember that the type of deed chosen for your real estate transaction matters, both regarding your rights and the deed’s impact on any potential issues with the title. Deeds also relate to the kind of title insurance, if any, that is available to you.
The following are the most common types of property deeds you’re likely to encounter in Texas.
A warranty deed is the most inclusive, and as the term warranty implies, it warranties that the state of the title is good. This means that the buyer of the property (the grantee) has legal recourse to the seller (the grantor) against any future claim to the property. Here the grantor guarantees they have sole claim to the property and no other entity has any claim or lien against that property.
This type of deed promises the new title holder that they can legally purchase, possess and enjoy the property. As such, it is the preferred instrument in transactions involving a mortgage lender and a title company. Obtaining a warranty deed involves a thorough title search, and that means you will be able to purchase a title insurance owner’s policy for added protection and peace of mind.
It should be noted, however, that some grantors may not be comfortable making such broad warranties, particularly when title defects may have existed before the grantor obtained the property.
Special Warranty Deed
The special warranty deed is more limited and are preferred by grantors who are not comfortable granting a general warranty deed. With a special warranty deed, the grantor only warrants title on the property from the time they took ownership of it.
In other words, the grantor is only bound to defend against title defects that occurred during their period of ownership. Therefore, the special warranty deed does not offer any protections for claims arising prior to the grantor’s ownership. This situation, in turn, can affect the protection that would otherwise be covered by a title insurance owner’s policy and may leave the grantee without full protection against future title claims.
Since this type of deed is less familiar than either warranty or special warranty deeds, you might ask, “What is a grant deed?” In Texas, a grant deed is an instrument with which a property owner can transfer real estate with implied covenants of title. (An implied covenant is an agreement not specifically stated but assumed to be true by both parties involved.) By including the words grant or convey in the grant deed, the grantor guarantees that they have not transferred title to the property to anyone other than the grantee. Further, this language guarantees that, at the time of the legal transfer of the property, the property is free from anything that would stop the transfer.
Deed of Trust
A deed of trust is not so much a deed in the traditional sense as it is part of the mortgage process. While a traditional warranty deed involves a grantor and a grantee, a deed of trust includes three parties. These are the lender (the beneficiary), the borrower (the trustor) and the trustee, a third party that might be a title company.
The trustee can be anyone willing to take on the responsibilities of the role, but traditionally, lenders choose companies that specialize in trustee services, like a title company.
In Texas, the trustee of a deed has several duties. These include collecting the monthly payments from the borrower on behalf of the lender. The trustee also has the power of foreclosure that allows them to sell the property through a non-judicial process. This power allows trustees to avoid the courts during the foreclosure process. This feature of a deed of trust makes it easier for lenders to foreclose when a borrower has defaulted on their loan.
A quitclaim deed is an instrument for conveying the interest in a property and doesn’t come with a warranty. You might think of it as an “as is” deed in which the grantor passes on to the grantee any title, interest or claim they have to the property, but nothing more. The grantee gets whatever interest the grantor has in the property, but there are no guarantees.
Though all this sounds risky, there are circumstances in which a quitclaim deed can be the right instrument to use in Texas. First, it’s a good way to correct typographical errors in a warranty deed. Second, it can be used to add or remove a person from the title. And finally, it can be used to gift property to someone without a traditional sale.
If you’re considering use of a quitclaim deed, it’s a good idea to contact the grantor’s title insurer and a real estate attorney before you opt for a quitclaim, as it may adversely affect title insurance coverage and protection against future claims.
Quitclaim deeds are popular because of their ease of use, but in the final analysis, a warranty deed might be a better solution, even between family members and good friends.
Bargain and Sale Deed
A bargain and sale deed includes a warranty that the grantor has title to the property, but it does not guarantee that the property is free of claims. This is referred to as bargain and sale deed without covenants. If a bargain and sale deed specifically states one or more additional guarantees, it is called a bargain and sale deed with covenants, making it similar to a special warranty deed.
Bargain and sale deeds are most often used when property is transferred pursuant to a foreclosure, a tax sale or settlement of the estate of a deceased person. They may also be used in the same situations as a quitclaim deed, one benefit of the bargain and sale deed being that it gives the grantee a little more protection.
The Transfer on Death Deed (TODD)
In addition to the deeds mentioned above, there is the transfer on death deed (TODD), legal in Texas since 2015. The goal of a TODD is commendable – to provide a simple mechanism for transferring ownership of land to a beneficiary, without probate, when the property’s owner dies.
Unfortunately, there are some serious problems with use of a TODD, one being that unpaid creditors have two years after the death of the owner to drag the property back into probate. This could potentially create huge problems for the beneficiary.
Get Legal Real Estate Assistance from Hammerle Finley in Lewisville, Texas
It should be apparent from this summary of property deeds in Texas that many options are available. Whether you are a first-time buyer or an experienced investor, buying a one-bedroom condo, an undeveloped tract of land or a multi-unit building, you have money on the line, and we’re here to protect you.
Initially, many purchases seem easy, but closings are increasingly complex, time consuming and stressful. You can count on our team of experienced real estate attorneys to explain and simplify the process. Based on our years of experience, we know that every transaction is unique, and our unwavering goal is to understand your needs and goals and help you achieve them.
Please don’t hesitate. Whether you are a buyer or a seller, contact us today to schedule your initial consultation, and let the expert real estate attorneys at Hammerle Finley go to work for you.