Where did the the term “Deed” come from? (Livery of Seisin)

Credit: Getty Images

Credit: Getty Images

What’s in a name?

We’ve all heard and used the term. Here at docprepper.com headquarters, we probably say, type or think it about 1000 times a day! So just for kicks, we decided to explore the term deed a bit further than it’s taken on a regular basis.

A deed is a deed, indeed!

So it turns out, all of our modern day deeds derive from an early English common law technique called “feoffment.” More specifically, there was a ritual (deed) performed called “livery of seisin” (or seizin).

The term “livery” is related to “delivery” and is still used in modern contract law. Livery of seisin could mean either livery in law, whereby the parties would go within sight of the land, a declaration is made and the recipient walks into the land or it could refer to livery in deedan ancient display in front of witnesses that included a physical transfer of land from one party to another!

In this act, also referred to as the “turf and twig ceremony,” the person transferring the land would take a handful of dirt, a twig or a stone from the actual land and hand it over to the person receiving the property while making a recital, such as “This turf and twig I give to thee, as free as Athelstan gave to me, and I hope a loving brother thou wilt be!”

A Famous Example

In fact, William Penn (of Pennsylvania fame) took possession of his land through the ceremony of livery of seisin! You can visit the site of the ceremony even today and see this plaque:

Credit: Public Domain, Wikipedia Commons

Today at the closing table we may hand over keys instead of dirt, and we may sign a Warranty Deed instead of performing the livery of seisin, but it’s not so far off that you can’t recognize the ancient in the modern… pretty cool!

When will my deed transfer show up on the county website?

Photo Credit: iStockPhoto

Photo Credit: iStockPhoto

I transferred the title to my property, but the county records still have the old information online! What happened? Was I ripped off?!?!

Whoa, calm down friend! Although it’s not outside the realm of possibility your deed was unintentionally or maliciously unrecorded, there’s a far more likely explanation we should explore first:  delay. Most counties take a bit of time to update their publicly available records (assuming they even have publicly available records). So before you jump to conclusions, give the county recorder, clerk or registrar a call and ask them how to get a copy of a recorded document. It’s usually pretty simple.

So how long does it take the county recorder to update their records?

As soon as document is recorded, it’s officially in the public record. Organizations like professional title plants gather and index information about recorded documents, and are usually current within several days (although the public usually doesn’t have access to this information). Many counties also have recording information publicly available on their website, and this can take anywhere from a few seconds to a few months to update. For example, here’s an excerpt from the Maricopa County Assessor‘s website:

The Assessor receives over 400,000 documents from the Recorder‘s Office each year, however you can expect that an ordinary house on a subdivision lot purchase could take 6-8 weeks after recording before the change displays on the web site. Purchases outside of a subdivision (mete/bounds legal descriptions or splits of property) take longer unless the Assessor‘s parcel number of the property is included in the legal description on the recorded deed.

(Here’s a link to the Maricopa County Assessor‘s search page – usually a couple of months out of date.)

Isn’t there a faster way to find out if my document has been recorded?

Usually, yes! Every county has a unique identifying number for each recorded document. If you have access to this number (it will usually be stamped or otherwise shown on your original document) you can call the county and they will verify it has been recorded. Maricopa County, Arizona, has a website that allows you to input and see a recorded document immediately after it’s been recorded (here’s a link to that website). So if you need to check and see if something has been recorded, don’t just freak out on your escrow officer, legal document preparer or friend that “supposedly” recorded your document! Make sure you’ve allowed enough time to pass, and a phone call to the local recorder never hurts.

Quitclaim Deeds: When You Should Use Them

Photo Credit: Stock.X.Chang

Photo Credit: Stock.X.Chang

Quitclaim Deeds: When You Want To Use Them.

In a previous post, we discussed the Top 3 Reasons Why You Shouldn’t Use A Quitclaim Deed. Of course, there are times when it is appropriate to use a quitclaim deed!

The best use of a quitclaim deed is to remove a cloud from the chain of title. What’s that mean? Any time there is a real or apparent dispute regarding ownership interest, liens, encumbrances or any sort of claim against a property we call it a “cloud on the title“.

(In the event you are unable to remove a cloud on title with a quitclaim deed, you may have to file a Quiet Title Action.)

Removing a person from title

For a most title transfers, using a quitclaim deed isn’t the best idea (for reasons already discussed). But sometimes, a quitclaim deed does exactly what you need it to do! How do you decide when it’s appropriate to use a quitclaim deed? One helpful way to ask yourself whether or not the party you’re removing from title was supposed to be on there in the first place. 

Let’s assume, for a moment, the following:

  • You are married. (Congratulations!)
  • Your parents own property in a community property state.
  • Your parents want to transfer that property to you as your “sole and separate property”. (You have been married for years now… when are they just going to accept your spouse as a member of the family already?!)
  • You are named in as a grantee in the deed, and it even says “as sole and separate property”. (Or alternatively your marital status is not disclosed at all.)
  • Your spouse never signs a disclaimer deed.

In this situation, your spouse actually owns half of your interest! Because you were supposed to be the only one on title, it would be considered a “cloud” and a quitclaim deed would be the perfect instrument to clean things up.

If title was intentionally conveyed to you and your spouse together and one of you wants to be removed, you might want to consider signing another document such as a Special Warranty Deed. It might just save you some trouble down the line.

Photo Credit: SXC

Photo Credit: SXC

Boundary Disputes

Sometimes, the boundary at which your property stops and the adjoining property begins is not so clear! A common boundary dispute arises when a survey reveals that a fence (or other structure) has been built on what turns out to be the neighboring property. This is called encroachment.

An easy way to fix the situation would be for your neighbor to simply quitclaim “the west 5 feet” (or whatever part of their land your fence is on) to you, thereby resolving the encroachment. Of course, you can’t force your neighbor to simply give up their land… but asking won’t hurt! (You might remind your neighbor they benefit from the fence as well. Also, a bottle of wine and a compliment sure couldn’t hurt!) 

If your neighbor is unwilling to quitclaim the portion of land in question to you, you could also sign and record an encroachment agreement. This will disclose publicly how the parties resolved the encroachment issue and offers some additional protection.

If nothing else seems to work, you might have to bite the bullet and take down the structure. There’s only so long you can fence with someone over a fence!

Adverse Possession

Because quitclaim deeds don’t make any guarantees of ownership, they can also be signed used to prevent cases of adverse possession.

What if you have been using your neighbor’s driveway for years? You know the driveway isn’t yours, they know it isn’t yours, but now your neighbor is selling their house… A potential new buyer comes over and sees that you have been using the driveway as your own! The new buyer becomes concerned about you claiming the driveway for yourself through adverse possession law.

In this situation you can execute a quitclaim deed to show for the record you don’t have any rights to the driveway. That prevents any adverse possession claim and satisfies the new buyer. (You may not enjoy the use of the driveway anymore, but hey… your neighbor was nice enough to give you the west 5 feet of his property over that fence dispute, remember? It’s the least you can do!)

Photo Credit: SXC

Photo Credit: SXC

Are you a grantor (seller) with something to hide?

We have to at least address the possibility that you could have some unscrupulous motivation for using a quitclaim deed. After all, this is what a title company is afraid of when they see a quitclaim deed where another instrument should be!

You want to sell a piece of property. You have a buyer and have convinced them everything is on the up and up… except there’s a problem:  You are about to get a judgment against you. Or, there’s an unrecorded lien against the property you know about. Heck, maybe you actually already sold an undivided 50% interest to someone else… in all of these cases, you’re a scumbag that is trying to hide the truth from the buyer and you think you should use a quitclaim deed so they can’t sue you later.

Will it cause you more problems down the road? Definitely.

Do we recommend this as a course of action? Never.

Shame on you!

Top 3 Reasons Why You Shouldn’t Use A Quitclaim Deed To Transfer Title

Photo Credit: Unknown

Photo Credit: Unknown

Let’s take a moment to address the differences between a Quitclaim Deed and a (Special) Warranty Deed. There are several points to consider when choosing the correct deed to use for a title transfer. When you look at the differences between the deeds and scenarios for which each is best suited, you might reconsider using that Quitclaim Deed to transfer title.

Quitclaim Deeds: Why They Stink.

A Quitclaim Deed (often mistakenly referred to as a “quick claim” deed) is a popular instrument for title transfers. However, when choosing a deed its popularity should not be a determining factor! Many different deeds will convey title to real property, each will be useful for different situations. One of the most important things to keep in mind when choosing a Quitclaim Deed is that it doesn’t even say whether or not the person conveying title owns the property! The grantor offers no “guarantees” as to their ownership interest in the property or the condition of the title, which brings us to reason number 3…

Reason Number 3:  NO GUARANTEES.

Although a quitclaim deed does convey title, doesn’t make any other guarantees, warranties or assurances. Basically a quitclaim deed says this:

“I don’t promise that this property has a clean title, or even that I own it at all! Whatever interest I may have in the property I’m giving to you. If you find out later you don’t have a marketable title, you can’t sue me! I didn’t promise you anything! Bwahahahaha!!!”

Okay, maybe that’s a bit dramatic… but you get the point! Many bloggers and “experts” (sometimes even real estate attorneys or a divorce court) might advise you to use a quitclaim deed. Lots of people have used them to transfer property into or out of a trusts, limited liability companies, between husbands, wives and family members “because you don’t necessarily need such strong guarantees in that situation”. Well that may be true, but it’s certainly not the only thing to think about.

Reason Number 2:  THE “SUBJECT TO” SUBJECT.

You might think that a you have to use a quitclaim deed because the property isn’t “free and clear” from liensNot so! This is probably one of the more common misconceptions we’ve heard regarding quitclaim deeds (and Warranty Deeds). The argument goes something like this:

“Well I can’t use a Grant Deed, Warranty Deed or a Special Warranty Deed because those documents say the property is free from liens… I have a mortgage on the property so I have to use a quitclaim deed!”

Well, that’s almost true. Warranty Deeds and Special Warranty Deeds do contain verbiage that makes some sort of guarantee as to the condition of the titleWhat they actually say, however, is that all existing claims have been disclosed. Warranty Deeds do not say the property is “free and clear”.  You see, each deed has a section that contains “subject to” verbiage. In the “subject to” section of the deed, certain elements are called out as being part of the transfer. A typical example of “subject to” language is as follows:

“SUBJECT TO: Current taxes and other assessments, reservations in patents and all easements, rights of way, encumbrances, liens, covenants, conditions, restrictions, obligations, and liabilities as may appear of record.”

This is significant because any liens that are recorded in the public record are “part of the package”. The grantee has no legal recourse to go back to the grantor because of a lien on the property he didn’t know about, so long as it was properly recorded (and therefore disclosed). When you purchase a title insurance policy, the title company will do a title search and list everything they find on the “Schedule B” section of the title commitment.

Reason Number 1:  TITLE COMPANIES HATE ‘EM.

Many title examiners will not accept a prior conveyance made by quitclaim without additional documentation signed by grantor. Remember, a quitclaim doesn’t guarantee anything! So when a title officer sees a quitclaim deed in the chain of title, they may question whether or not the grantor in the quitclaim deed had something to hide. Imagine how difficult it would be to track down an ex-spouse or trustee of a trust (who’s probably out of the country or deceased) so they can sign off on this property, again… just clear up the chain of title because the title officer doesn’t like the quitclaim deed. Now this is holding up the escrow! People want to move in and unpack! People want their money! If you don’t have anything to hide, why not use a stronger document? Here’s a good one that you can use in almost every state: The Special Warranty Deed.

Want to know when quitclaim deeds are supposed to be used? Check out this article!

Save 100% on Recording Fees for Independence Day!

Save 100% on Recording Fees for Independence Day!

4th of July

 

To celebrate America’s Independence Day, docprepper.com is picking up the tab for all County Recording Fees!
 
 

That’s right. We’re
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july-fourth-bbqSo throw something tasty on the barbeque, grab a cold beverage and enjoy your freedom this weekend. Enjoy your friends, family, backyard and home…

 
 

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Just as our forefathers said ‘no’ to taxation without representation, say ‘no’ to recording fees this year and take care of your home. Call us, toll free (man, there’s a lot of free around here!) at

 
 

  1. Just use coupon code “4MERRIKA” at checkout to get your discount (a $35 value!), or mention it on the phone with your docprepper.com representative. Happy fourth of July!