- How to Hold Title: Types of Deeds & Titles
By Their Deeds We Shall Know Them:
Different Deeds and Different Titles
By: Raymond J. Bowie, Esq.
The lore of proverbs has always been rich in references to human deeds. One, from the lowlands of North Carolina, is particularly poignant: “Bad deeds follow you; good deeds precede you.” The unknown author of this proverb might, in truth, have been referring to property deeds.
As most folks know, a deed is an instrument used to convey legal title to real property. What many folks may not know, however, is that there are different types of deeds and different types of legal titles. Knowing the difference is critical in being able to distinguish between good deeds and bad deeds in the buying and selling of real estate.
Truly, if you receive a “bad deed” to your property, questions of defective or improper title will follow you thereafter. Whereas if you receive a “good deed” to property, the good title will facilitate all your future transactions with the property.
In Florida, there are three basic types of deeds, each of which conveys a different quality of title from the “grantor,” usually the property seller, to the “grantee”, ordinarily the buyer. For simplicity, we’ll use the terms “seller” for the party who gives a deed and “buyer” for the person who receives a deed.
Quality of title is a term for the nature and extent of the “warranties,” or promises that the seller makes to the buyer in the deed. The more warranties the seller makes about the property’s title in his deed, the more protection the buyer has and the more liability the seller may have to the buyer even after the sale if the title is not as good as the seller promised.
Hence, generally the property buyer would prefer to receive a deed in which the seller makes the maximum number of warranties that the property’s title is good. This should be the buyer’s desire not only for his own peace of mind, but also from the standpoint of feeling comfortable in making the same warranties when he subsequently sells the property. On the other hand, for various reasons, the property seller may prefer to limit the number and types of warranties he makes in his deed to the buyer. Perhaps the seller himself received a deed with only limited warranties, or maybe the seller took title to the property under circumstances where he is unsure of the status of the title, or where the seller is acting as a representative of the true property owner.
From the old common law we inherited from England, the best deed was one that granted from the seller to the buyer the “English covenants of title.” By the way, “covenants” is a term meaning the same thing as “warranties” or promises that one party makes to another. Traditionally, five of these English covenants of title could be put in a deed: First, that the seller has good title to the property; second, that he has the right to convey that good title to a buyer; third, that the seller has done nothing to encumber the title; fourth, that the buyer shall have quiet enjoyment of the title, meaning that no one will attack his title with a claim of better title; and lastly, that the seller will defend the title and do whatever further acts are necessary to assure the buyer of good title.
These five title covenants are the best warranties any buyer can get in a deed. With these covenants, the seller warrants to the buyer that the title to the property is good and without encumbrances dating back all the way through the chain of all prior owners, without any limit or qualification.
Of the three types of deeds prevalent in Florida, the deed providing these optimal English covenants of title is the warranty deed, also called a “statutory warranty deed” because the Florida legislature has set out the form of it in Section 689.02 of the Florida Statutes. This statute defines a warranty deed as any deed using the following phrases: that the seller “grants, bargains and sells” a legally described property to the buyer and “hereby does fully warrant the title, and will defend same against all lawful claims.” This shorthand reference is sufficient under Florida law to include in the warranty deed all five of the English covenants of title to the buyer.
A buyer insistent on having the best warranties of title the law recognizes should insist in any sales contract that the seller convey title by warranty deed. As always, however, the type of deed and quality of title is a matter that can be negotiated between buyer and seller in any sales contract.
Most standard sales contracts for resale property do require the seller to convey title by warranty deed. Other transactions typically are different. In sales of new homes by builders, in sales of property by agents of the seller, and in cases of involuntary sales, it is customary instead for the seller to give what is called a “special warranty deed”.
In a special warranty deed, the seller is still warranting good title to the buyer, but it is a more limited warranty that the seller is making. Here, the seller is warranting that the title is good only for the period of time that the seller has owned the property – and the seller makes no warranties of good title for prior periods of time and previous owners. The language used in a special warranty deed limits the seller’s title warranty only to “all persons claiming by, through or under the grantor.” Special warranty deeds are typically used not just by new home builders, but also when trustees, guardians, and personal representatives act as sellers, and further in foreclosures and tax sales.
In the third type of deed, the quitclaim deed, the grantor of the deed is actually making no warranties of title whatsoever to the grantee – and does not purport to convey any interest in the property to the grantee. A quitclaim deed simply conveys to the grantee whatever interest the grantor might have in the property, which in fact may be no interest at all. The key words used in a quitclaim deed are that the grantor “remises, releases and quitclaims” the property to the grantee.
Because of this, quitclaim deeds are not really used to convey title from one party to another party. Instead, they are commonly used when one property owner is surrendering his property interest to another co-owner, as in a divorce or liquidation of a partnership, or where a party is simply clarifying that he has no interest in a property. A quitclaim deed acts more like a release of any interest the grantor has or may have in a property.
In all cases, a buyer seeking further assurance that he is receiving good title should, regardless of the type of deed he gets, secure an owner’s title insurance policy. That way, in the event his title is challenged, the buyer may turn to the title insurance company for legal defense against title claims and if necessary payment of claims to protect the owner’s title.
Going through any county’s land records, it is common to see many other different titles on deeds: tax deeds, deed in trust, trustee’s deeds, corrective deeds, and other variations. But the titles of these deeds merely describe who the parties are or what they are doing. No matter how a deed is named, there are still only three basic types of deeds: warranty deeds, special warranty deeds and quitclaim deeds.
However, property buyers must look at more than just the type of deed they may be getting. If they are taking title with one or more co-owners, they must also address how they will hold title to the property under the deed they receive, what kind of relationship they will have with the other co-owners, and what will be their rights and liabilities between them as owners.
This is called the “form of title.” There are several alternative forms of title that may be available to co-owners: tenancy in common, joint tenancy, tenancy by the entirety and life estates.
However, property buyers must look at more than just the type of deed they may be getting. Buyers must also think about how they will hold title to the property in the deed – and if they are taking title with one or more co-owners, what kind of legal relationship they will have in the property with the other owners. This is called the “form of title.”
Any individual of legal age, 18 years or older, can hold title to real estate. In addition, certain artificial legal entities created by statute, such as corporations, partnerships and limited liability companies, can also hold title to property in their own name. Trustees can hold title on behalf of trusts. And guardians and personal representatives may, by statute, hold title on behalf of other individuals in specific legal situations such as immaturity, incompetence or death. Moreover, any of these individual owners, legal entities or representatives can also hold title to property jointly with one or more other individuals, entities or representatives.
Even a single individual buying property on his or her own has a decision to make about how to take title. A single owner may want to consider whether he should take title in his own name, or whether for estate planning purposes in the name of a trust, or for business or asset protection purposes in the name of a corporation or limited liability company. While subjects of estate planning and asset protection go beyond the scope of this column, even the single property owner should understand that he has certain options to take title to real property other than in his own name. By holding title in the name of a trust or a business entity he controls, the single owner can manage the property the same as if he held it in his own name, but with the added advantages conferred by the artificial legal entity he has chosen.
When it comes to co-owners, there are several alternative ways in which multiple owners can own the same real property together. These forms of title are: tenancy in common, joint tenancy, tenancy by the entirety and the life estate. Each form of title differs from the others in how it governs the relationships between the co-owners. And even though the legal names use the word “tenancy”, they do refer to concepts of property ownership, not leasing.
At common law, unless a deed specified some other form of title between co-owners, the co-owners were deemed to own the property as tenants in common. Any deed that grants property simply to Owner A and Owner B, without saying any more, creates a tenancy in common between Owners A and B. Each tenant in common owns an undivided fractional share of the entire property, and the owners’ respective shares can either be equal or unequal. In the above example, Owner A and Owner B would each own an equal 50% interest in the property. But if their deed specified certain different ownership shares, their interests could be unequal, as when a deed might give a 60% interest to Owner A and a 40% interest to Owner B. Hence, when owners own unequal shares in a property, they must hold title as tenants in common.
Another important facet to tenancy in common is that each owner’s interest in the property can, without the consent of the other owner(s), be separately sold, conveyed, devised to that owner’s heirs, or seized by that owner’s creditors. Because of this feature, tenancy in common may not be advisable where common management of the property is desired, or where each owner is to have some control of the other owner’s interest, or where asset protection is a concern.
Another form of title, called joint tenancy, does provide some of these advantages. Joint tenants also own undivided interests in the property with one another, but with the important difference of a right of survivorship. This means that if a joint tenant dies, his interest in the property automatically passes to the other joint tenant(s) outside of any will or testamentary disposition. Some asset protection is also provided. A creditor of one joint tenant can only reach that one joint tenant’s undivided fractional interest in the property, which is generally worthless to the creditor since it cannot be separately sold. And when the debtor joint tenant dies, his interest passes to the other joint tenants, depriving the creditor of the property interest.
There are, however, certain restrictions as to how a joint tenancy can be created between co-owners. To be joint tenants, all the owners must take title at the same time, through the same deed, and all own equal shares in the property. For example, if there are two joint tenants, they each must own a 50% interest; if there are three, each must own a one-third interest; and so on. Joint tenants cannot own different percentage interests. And to create a joint tenancy, the deed must explicitly state: “To Owner A and Owner B, as joint tenants with rights of survivorship.”
There is a form of joint tenancy even better than this, but even more restrictive. This form of title is called tenancy by the entirety, and it is limited exclusively to married couples. In Florida, any deed to “Owner A and Owner B, husband and wife” or similar reference is deemed to create a tenancy by the entirety. Here, management and control of the property is totally vested in both owners jointly, so that neither owner can sell, convey, devise to heirs, mortgage or lien the property without the joinder of the other party. The creditor of one spouse cannot reach property held as tenants by the entirety, providing great asset protection at least until death or divorce terminates the marriage.
In yet another form of title, the ownership interests are divided among the co-owners not by percentage interests, but rather by succession of time. This is called the life estate. Here, one owner is granted by deed or by will an interest in the property that continues for that owner’s lifetime (or even the life of a specified third person), after which the possession of the property then passes to the other owner(s). The first owner is called the “life tenant,” and the second owner the “remainderman.” The key here is that remainderman takes his possession of the property when the life tenant’s possession ends upon death.
While the common law of life estates may become a bit complicated, and the subject of next month’s column, it should be noted that life estates may offer many advantages to co-owners seeking to provide for disposition of a property at one owner’s death without the probate of a will or the cost of a trust.
Whether taking title as a single owner or as co-owners, property buyers should carefully consider how they will take title before closing on a property. Most standard form sales contracts allow a buyer to sign the contract as an individual and subsequently prior to closing decide to take title in a different form of title. Changing the form of title after the closing may still be possible, but only at extra cost and with added risk of legal or tax consequences.
As always, buyers should seek counsel from a knowledgeable attorney in considering questions as to form of title. Only an attorney can advise a party how to hold title to real estate.
Real estate brokers, title companies and other advisors cannot do so.
Taking title in the most advantageous way is important for every property buyer. As in that old North Carolina proverb, no buyer wants to have the consequences of a “bad deed” following after him – and every buyer hopes to have a “good deed” protecting his interest in the property.