Buying a House, Home or Rental Property? Ways to Acquire Title
If you are thinking of buying a house, a home or rental property, and need an introduction on how to acquire title, you have come to the right place. In this article, we shall discuss the various ways to acquire title to your new property.
This is the transfer of property.
To obtain or receive property
The transfer of title to property. You can have alienation without conveyance, by way of a lease. In Arizona you can sign a document with a mark or an alias
Ownership rights. Title and Deed are not the same thing in law. The Deed is the document used to transfer the ownership of real estate. The parties are the grantor (seller) and the grantee (buyer). Title is basically ownership rights. It is abstract. You can’t touch it.
Covenant of Seizen
The promise of ownership
Livery of Seizen
Delivery of ownership
The transfer of property with the owner’s consent, through sale, gift, trade or exchange.
The transfer of property without the owner’s consent (foreclosure, property tax sale, adverse possession).
Types of Deeds
They all transfer title. The differences are in the warranties or lack of warranties. A warranty is what the grantor will do for the grantee, after the grantee becomes the owner, if there’s anything wrong with the title. It is important to know what kind of title you are getting and this is why so many sellers will ask you to do your own due diligence. In a different article, we shall talk more about due diligence on your title.
(Also called general warranty or general deed)! This is the highest and best deed available. Grantor says to the grantee in the deed “I will defend the title against all claims regardless of when the claims arose. That deed is known as a patent deed and is used when property goes from government to private ownership. Defend – the grantor will give testimony in court in support of the ownership.
Special Warranty Deed
In this kind of title, the grantor says to the grantee in the deed “I will defend the title but only for the time I have owned the property.” This is used by sub-dividers and new home builders.
Bargain and Sale Deed
It has no written warranties. Examples of a bargain deed include:
a) Sheriff’s deed
b) Trustee’s deed
c) Prescription deed
d) Executor’s deed
e) Gift deed
Please note that the Sheriff’s deed, Trustee’s deed and Prescription deed, are usually a part of involuntary alienation.
Implied Warranties of a Bargain and Sale Deed
Nothing is written down but these are things you may assume:
a) the grantor is who he says he is
b) the grantor has the authority to sign the deed
c) the grantor has legal possession of the estate
d) the grantor has not signed a deed for anyone else
e) all liens are a matter of public record
Quit Claim Deed
This deed should not be used to transfer the ownership of real estate. The purpose of a quit claim deed is to clear up a cloud on a title. The reason you should not use it is the deed has no covenant of seizen (no promise of ownership). Grantor says to grantee in the deed “If I own the property, grantee, it is yours”.
Grantor says to grantee in the deed “I do not own the property, grantee” The purpose of this deed is to get someone off title or keep him from coming on title. It is used in prenuptial agreements, divorce.
Essential Elements of a Deed
Various States have different laws. You need to check the law in your State. However, Arizona law requires the following:
- Deed must be acknowledged by the grantor. Acknowledge means, the document must be signed in front of a Notary Public.
- Deed must be notarized by a Notary Public.
- Deed must name the grantee. No buyer ever has to sign a deed to make it valid.
- The Deed must state the consideration paid to the seller. Consideration is that thing which causes someone else to make a promise or do something. The Deed does not contain the purchase price. The purchase price is found in the contract.
- The Deed must have a granting and conveyance clause.
- There must be a legal description. It must be perfect, no mistakes.
- Any warranties must be clearly stated.
- Competent parties.
- Delivery coupled with acceptance.
NB: Other things not required by some States: Most States require a date. There is no mandatory recording law.
How can one then determine ownership if there’s no date or record? In Arizona, there is the notice of ownership.
Notice of Ownership
a) Constructive Notice – things that are a matter of public record serve as a notice to the world.
b) Actual Notice – Evidence existing on the property. Evidence is not proof, examples include name on the mailbox, utilities in the name of the owner, title, vehicles registered to that address, magazine and newspaper subscriptions to that address, physical possession of the property (you cannot physically possess land or an apartment building).
Law Number One: A recorded deed is superior to an unrecorded deed.
Law Number Two: Physical possession with a deed is superior to a recorded deed. Possession is 90 percent of the argument. The deed is 10 percent.
We certainly hope that the above article has been of help in determining what kind of a title you need to acquire for your property. Recently, a good friend brought a property, sight unseen and was rewarded with a quit claim deed. Stay tuned and we will tell you how that saga turns out.