July 17, 2018
Title to property is conveyed from a living person to another by means of a transfer. The transfer may be a voluntary act of a person or may be a transfer by operation of law and, thus, involuntary (Cal. Civ. Code § 1039). An estate in real property (other than an estate at will or for a term not exceeding one year) can be transferred only by operation of law or by an instrument in writing, subscribed by the party disposing of the interest, or by his agent (the agent’s authority must also be in writing) (Cal. Civ. Code 1091)
A written transfer of title to real property is called a grant or a conveyance (Cal. Civ. Code § 1053). A voluntary grant of real property is called a deed. A minimum statutory requirement of a deed, as set forth in Cal. Civ. Code §1091, is that it must be in writing, and it must be signed by the grantor or by his/her agent so authorized in writing.
A deed, to be valid, must satisfy the following requirements:
1. The grantor must be designated in the body;
2. The grantor must be competent to contract;
3. The grantee must be a person in being, natural or artificial (a corporation, a limited liability company, etc.);
4. The deed must contain operative words of conveyance, evidencing intent to pass title such as “grant”, “release”, “remise”, “quitclaim,”, etc.
5. The property that is to be conveyed must be sufficiently described; and
6. The deed must be delivered.
A deed (a “Grant”, Cal. Civ. Code §1092) must be delivered in order to have effect (Cal. Civ. Code §1054Delivery of a recorded instrument is presumed as of the date of the instrument (Cal. Civ. Code § 1055). Deeds to a government agency must be formally accepted by the agency (Govt. Code § 27281).
Title to the real property described in the grant passes upon delivery of the deed, regardless of the date of recording (Cal. Civ. Code §§1054, 1055, 1056, 1217). Recording in the Official Records of the County in which the property is located alone does not establish delivery although a recorded instrument is prima facie evidence of the existence and content of the original recorded document and its execution and delivery by each person by whom it purports to have been executed (Evid. Code §1600). A deed conveying real property may have been recorded but not delivered and a court could deem the conveyance void if a party can prove that delivery was not made or that there was no intent to unconditionally convey title at the time the deed was delivered. A simple example is when the Grantor who signs a deed dies before the delivery is made or delivers the deed to the grantee with instructions that it is not to be effective or recorded until the grantor’s death (although the irrevocable delivery of the deed to a third party with instructions to deliver the deed to the grantee upon the grantor’s death may be effective to create a remainder interest in the grantee). A court might void the conveyance because a court will, in most cases, guard a decedent's estate against treatment of such a conveyance by deed as a will substitute.
The intent of the Grantor and the Grantee, as expressed in the words used in the grant itself, and their effect and interpretation, are reviewed by a court when an interpretation of the grant is necessary (Cal. Civ. Code §1066 et seq. and Cal. Civ. Code §§1084, 1085, 1104 et seq.) Facts recited in a grant are conclusively presumed to be true as between the parties thereto or their successors in interest
(Cal. Evid. Code §622).
One form of a conveyance is a final quiet title order or judgment. Or an Order dissolving a marriage.
Contrary to a widely held belief, “valuable consideration” is not necessary to the validity of most deeds [even though many grants begin with the words “For Valuable Consideration”]. But, lack of consideration exposes the grantee named in the grant to claims of the grantor's creditors and to the claims of holders of a conflicting grant of the same property. In the well‐known case of Rupp v. Kahn (1966) 246 Cal.App.2d 188, the surviving transferee of the conveyed property was held liable for the decedent transferor's debts because the deed that created a joint tenancy between the two (the Grantor and the transferee) was without consideration, and was given at the time that the grantor was probably insolvent.
Grant vs. Quitclaim Deed – After Acquired Title:
A widely used “grant” is a quitclaim deed. Whatever the Grantor held in the property that is described in the quitclaim deed, be it a percentage, a whole, or nothing is “conveyed” to the Grantee. The main difference between a grant deed and a quitclaim deed is that a grant deed conveys afteracquired title of the grantor unless a different intent is expressed in the earlier deed (Cal. Civ. Code §§
1106 and 2930). A quitclaim deed conveys no after‐acquired title. An example follows:
The Grantor (A) conveys Whiteacre to the Grantee (B) by recorded grant deed describing an undivided one half (1/2) interest in Whiteacre. But, on the date of Grantor’s execution of the grant deed, A only owned an undivided one fourth (1/4) interest in Whiteacre. A, at a later date, acquires another one fourth interest in Whiteacre by quitclaim deed from a third party (C). Upon recording of the quitclaim from C to A, the one fourth interest held by C "feeds" into B so that B then obtains the entire one half interest that his grant deed from A described.
This is an example of the “After Acquired Title” doctrine that applies when the Grantor executes a grant deed but does not apply when the Grantor executes a quitclaim deed. An interesting scenario where the doctrine applies is if A held no record interest or title at the time of his signing the Grant Deed to B, but later acquired an undivided one half interest in Whiteacre. B would then own an
undivided one half interest in Whiteacre.
Quitclaim deeds convey no after‐acquired title. If the conveyance from A to B in the above example was in the form of a quitclaim deed signed by A in favor of B, the one fourth interest acquired later from C would not pass to B. The grantor's after‐acquired title would not pass in the following example:
A conveys Orangeacre to B by grant deed that excepts all oil and gas in the conveyance. A, at the time he signs the grant deed, owns Orangeacre, but owns no oil and gas ‐ they had been reserved by a prior grantor before A obtained title to Orangeacre. The prior grantor then later conveys the oil and gas to A. B did not expect to get the oil and gas (the intent of the Grantor was not expressed in the grant deed because the deed that B received from A excepted the oil and gas. B would not own the oil and gas interest, even though the earlier deed was in the form of a grant. A would still own the oil and gas rights.
A quitclaim deed includes no warranties, such as the grantor's covenant against prior encumbrances. The grantee described in the quitclaim deed only obtains what the grantor owned. If the grantor owned nothing, the grantee receives nothing. A grant deed includes two implied warranties that are set forth in Cal. Civil Code §1113 provides that when the term “grant” is used in a conveyance the following 2 covenants are implied (unless restrained by the express terms of the grant:
1. “That previous to the time of the execution of such conveyance, the grantor has not conveyed the same estate, or any right, title, or interest therein, to any person other than the grantee; and
2. "That such estate is at the time of the execution of such conveyance free from incumbrances done, made, or suffered by the grantor, or any person claiming under him."
DEEDS AND DECEDENTS:
Contrary to common usage, a living person has no heirs. A decedent has heirs. Therefore, a deed (be it a grant deed or a quitclaim deed) that identifies the living grantee(s) only as "the heirs of A" is void. Although commonly done by the unaware, in most cases a deed cannot be delivered after the grantor's death and may therefore be deemed by a court to be void for lack of delivery. However, title to real property may be granted to a deceased party's personal representative.
A conveys to “B and C, husband and wife as joint tenants”. In most cases a joint tenancy interest is a non‐probate asset. The probate court does not get involved. In the usual scenario, B dies, and C as the survivor obtains title to the whole. But it is possible that the joint tenancy was severed prior to the death of B by an agreement or the action of either B or C. A joint tenant or holder of a future interest who kills (commits a homicide) the other joint tenant or owner upon which the killer's estate depends does not receive the victim's survivorship or remainder interest (Probate Code §§. 250, 251). If C commits a homicides and kills B, C will not obtain B’s interest in
Life Estate Interests:
If ownership in Orangeacre is held as a life estate or in joint tenancy, title is not usually subject to distribution under the decedent owner's will. A recorded verified affidavit (including an attested or certified copy of a record of death)is adequate to give notice of the termination of the decedent's estate (Probate Code §§ 210, 211). Under current community property rules, the surviving spouse's recorded verified affidavit on a standard form serves a similar purpose.
Although a decedent cannot accept title to real property, and the "estate" of the decedent is not an entity capable of holding title, a conveyance may be made to or from the estate's personal representative. An “Executor’s Deed” or an “Administrator’s Deed” is an acceptable form to convey the interest that a decedent had in real property as is an Order of Distribution signed by a Judge in a probate proceeding that is final and is recorded.
Classification of Deeds:
Deeds are commonly classified according to circumstance under which they were executed. For Example:
1. An executor’s or administrator’s deed is executed by a personal representative of the estate of a decedent;
2. A guardian’s deed is executed on behalf of minors and incompetents (as well as Conservators)
3. A trustee’s deed upon sale is executed following foreclosure of a deed of trust;
4. A deed in lieu of foreclosure is executed by a delinquent debtor;
5. A sheriff’s deed is executed upon consummation of execution proceedings instituted by a creditor;
6. A gift deed.
Richard D. Marks, Esq. and Vicki Perkowitz, Esq.
With special thanks to Lawrence Lacombe for portions of his materials used with his permission.