Transfers of real property have been made for eons. It is possible even our caveman ancestors staked out claims to land. Modern ownership of real property is conveyed by a deed. Over the years, establishing a claim to ownership was frequently a battle as property rights have real value. In merry old England, the King owned all the land. The King allowed those he favored to lease the land. There was not a lot of confusion about who owned the land, but there might be dispute concerning the extent of lease. Over time, the King's subjects got more and more rights and ultimately gained the right to own land rather than lease it.
Property ownership developed as one of the most important rights and with that came emphasis on establishment and protection of real property ownership. The common law in England provided a large part of that protection from what is known as the statute of frauds. The statute of frauds is intended to prevent fraud and dispute. It requires certain contracts and conveyances be in writing. That requirement continues in Florida.
Florida's statute of frauds requires a deed be signed by the grantor and be signed by 2 witnesses to be a valid conveyancing instrument. The deed must also describe the property in a manner that allows the property to be located and its dimensions established. Early Florida deeds may have included descriptions that started "with the large oak tree then traveling 200 yards to the creek then along the creek to the bend and back to the large oak tree." Because the creek could move and the oak tree die, such descriptions were less than ideal. The federal government commissioned surveys of the entire country and descriptions can now use that survey. In most developed communities, property is platted, which is a scale depiction of the development, its location and the lots within it recorded with local government. A platted lot description might be "Lot 6 of Block 12 of Oaktree, according to the plat recorded in Plat Book 1 in the Public Records of Imaginary County." But, even today, such accurate description is not required for a valid deed as long as the deed contains a description of the property conveyed.
A deed must make it clear that it is as a conveyancing instrument. Words such as convey, transfer, sell or assign are all sufficient, but some lawyers use lots of words and synonyms just to make sure. The deed must be delivered to the grantee or the grantee's agent and must be accepted. That means someone who wants to get rid of property cannot simply sign a deed to someone else and be done with it. It also means that a conveyance is ineffective if the deed is prepared, signed and witnessed, but not delivered until after the grantor dies.
Notarization is not required for a valid deed, but it is required to record the deed in the public records. Recording the deed is needed to place the world on notice of the grantee's ownership and prevent the former owner from conveying to someone else or liens attaching due to actions of the former owner.
Most property is conveyed by general warranty deed. A general warranty deed includes guarantees from the grantor that the title is good and specifically includes 5 covenants of title. Those covenants are the covenant of seisin (seller owns and possesses the property), covenant of right to convey, covenant against encumbrances (there are no liens against the property), covenant of quiet enjoyment (ownership will not be disturbed) and the covenant of general warranty (the grantor will protect title against claims by others).
Early warranty deeds listed all of these warranties given by the grantor, which made for somewhat lengthy and cumbersome documents. Those forms have been replaced by a statutory warranty deed which provides a short method to convey title with all of the covenants of a general warranty deed.
The next most common conveyancing deed in Florida is the special warranty deed. That is a pretty funny name for a deed that is really not so special. The special warranty deed has the same warranties or covenants of title as a warranty deed, but limits them to claims which arise by or through the grantor but no others. That means the grantor's only warranty is that the grantor did not do anything to harm title. Anything done before the grantor acquired title will not be defended or addressed. Special warranty deeds are used primarily by developers and to some extent in commercial transactions. They should not be a buyer's deed of choice.
Quit claim deeds are often found in a chain of title. A quit claim is even less special than a special warranty deed because it contains no warranties or covenants of title at all. It effectively says, "if I have any interest in this property, and I am not claiming that I do have an interest, it is conveyed to the grantee." Quit claim deeds are used most often to clean up title problems and are more in the nature of a release of a claim that someone might have. In some cases, they are used to fix a deficiency in a previously recorded deed such as a bad property description. Because a quitclaim deed does not claim an ownership interest nor create any liability to defend claims against title, it is usually much easier to get signature to a quitclaim deed to fix title issues than any other document.
A number of specialty deeds also developed over the years. Personal representatives of estates and trustees of trusts are generally unwilling to warranty title when they are conveying assets owned by an estate or trust. In many cases, the trustee or personal representative has no personal interest in the property and is serving in a fiduciary capacity dealing with someone else's property. Trustee deeds and personal representative deeds are therefore similar to special warranty deeds as they only warrant title for any acts of the trustee or personal representative. In addition to that limited warranty, the deeds also warrant that the personal representative or trustee has right and authority to convey the property.
A deed which only a minority of states allow, but can be used in Florida is the enhanced life estate or Lady Bird deed. In all states, someone can deed property to a grantee to own for the grantee's life and then pass to a remainderman as the final owner. What is wrong with that? The grantee in such deeds has to get the remainderman to cooperate in any sale or mortgage because the remainderman has an interest (albeit a future interest) in the property. That makes the life estate awkward and often of limited use. It certainly makes it a poor choice for estate planning to avoid probate, as deeding the property to oneself for life with remainder to the kids would require all of the kids to cooperate in any sale or mortgage and that could get complicated.
With a Lady Bird deed, the grantor can convey an interest in the property for life with a remainder after that life to someone else, and give the first grantee complete authority to sell mortgage and otherwise deal with the property without joinder or cooperation of the remainderman. That can be an effective estate planning tool. Mom and dad can convey property to themselves, and reserve the right to mortgage, convey and otherwise deal with the property but if they still own it when they die, it goes by that same deed to their children. The ability to retain complete control without cooperation from the kids includes the ability to change the remaindermen and avoids the complication of getting all the kids to cooperate when mom and dad want to sell the property.
Different kinds of deeds are tools in a real estate attorney's box similar to those in the toolbox of a mechanic. Expertise in this is important, as using the correct deed can solve and avoid problems.
William G. Morris is the principal of William G. Morris, P.A. William G. Morris and his firm have represented clients in Collier County for over 30 years. His practice includes litigation and divorce, business law, estate planning, associations and real estate. The information in this column is general in nature and not intended as legal advice.