Deed essentials          

Parties. A deed is a legal instrument used by an owner, the grantor, to transfer title to real estate voluntarily to another party, the grantee.

A deed is used when a title is voluntarily transferred from the grantor to the grantee by sale or gift. The property owner must be alive for this transfer. For example, if the owner sells the property, the transfer takes place with a deed. If the owner donates the property to a charity, the transfer takes place with a deed.

 Components.  Deeds consist of grantor, grantee, consideration, words of conveyance (granting clause), interest or estate being conveyed (habendum clause), deed restrictions, exceptions and reservations, appurtenances, legal description, voluntary delivery and acceptance, signatures of grantor and two witnesses.

 Requirements for validity. Florida law requires a deed to meet the following for validity:

The deed must be signed by the transferor (current owner) of the property or by the transferor’s duly authorized agent or representative.

The deed must be signed in the presence of two witnesses who both must also sign the deed.

The deed must include a space for the parcel identification number with the number filled in prior to filing. The law specifies the parcel identification number is not a legal description and may not be used as a substitute for the description. Further, an incorrect parcel identification number on the deed does not invalidate the deed.

Recording.  Florida requires any conveyance or transfer of real property to be recorded according to the law. To legally record the deed, the following requirements must be met:

Types of statutory deed                             

A deed of conveyance can make a variety of warranties and convey a range of interests. The most common deeds are statutory deeds, in which the covenants are defined in law and do not need to be fully stated in the deed. The prominent types are the following.

Bargain and sale deed. In a bargain and sale deed, the grantor covenants that the title is valid but may or may not warrant against encumbrances or promise to defend against claims by other parties. If there is a warrant of defense, the deed is a full warranty bargain and sale deed.

The overall bargain and sale covenant is: “I own, but won’t defend.”

General warranty deed. The general warranty deed, or warranty deed for short, is the most commonly used deed. It contains the fullest possible assurances of good title and protection for the grantee. The deed is technically a bargain and sale deed in which the grantor promises to defend against any and all claims to the title.

The overall general warranty covenant is: “I own and will defend.”

Special warranty deed. In a special warranty deed, the grantor warrants only against title defects or encumbrances not noted on the deed that may have occurred during the grantor’s period of ownership or trusteeship. The deed does not protect the grantee against claims that predate the owner’s period of ownership. Special warranty deeds are often used by trustees and grantors who acquired the property through a tax sale.

The overall special warranty covenant is: “I own and will defend against my acts only.”

Quitclaim deed. A quitclaim deed transfers real and potential interests in a property, whether an interest is known to exist or not. The grantor makes no claim to any interest in the property being conveyed and offers no warrants to protect the grantee.

The quitclaim is typically used to clear title rather than convey it. Where there is a possibility that prior errors in deeds or other recorded documents might cloud (encumber) the title, the relevant parties execute a quitclaim deed to convey “any and all” interest to the grantee.

If a party responsible for encumbering title refuses to quitclaim the interest, the owner may file a quiet title suit. This requires the lienor to prove the validity of an interest. If the defendant is unable to do so, the court removes the cloud by decree.

The overall quit claim covenant is: “I may or may not own, and I won’t defend.”

Special purpose deeds                           

A special purpose deed is one tailored to the requirements of specific parties, properties, and purposes. The principal types are:

  • personal representative’s deed — used by an executor to convey a decedent’s estate; also called an executor’s deed

  • guardian’s deed — used by a court-appointed guardian to transfer property of minors or mentally incompetent persons

  • sheriff’s deed — used to convey foreclosed property sold at public auction

  • deed of trust — used to convey property to a third-party trustee as collateral for a loan; on satisfaction of the loan terms, the trustee uses a reconveyance deed to convey the property back to the borrower

  • deed in trust — used to convey property to the trustee of a land trust. Not to be confused with deed of trust

  • master deed — used to convey land to a condominium developer; accompanied by the condominium declaration when recorded

  • partition deed — used to convey co-owned property in compliance with a court order resulting from a partition suit; a partition suit terminates an estate when one or more co-owners want to dissolve their relationship and are unable to do so without the assistance of a court.

  • patent deed — used to transfer government property to private parties

  • tax deed — used to convey property sold at a tax sale
  • used to divide ownership between the current grantor and the future owners; the current grantor holds the property as a life tenant while the future owners will inherit the property as remainder beneficiaries when the current owner dies.

Deed clauses               Conveyance clauses and covenant, or warrant, clauses set forth all the necessary provisions of the conveyance.

Conveyance clauses. Conveyance clauses describe the details of the transfer. The principal conveyance clauses are:

  • granting clause, or premises clause — the only required clause; contains the conveyance intentions; names the parties; describes the property; indicates nominal consideration

  • habendum clause — describes the type of estate being conveyed (fee simple, life, etc.)

  • reddendum clause, or reserving clause — recites restrictions and limitations to the estate being conveyed, e.g., deed restrictions, liens, easements, encroachments, etc.

  • tenendum clause — identifies property being conveyed in addition to land

Covenant, or warrant, clauses. Covenant clauses present the grantor’s assurances to the grantee. A deed of conveyance usually contains one or more of the following covenants, depending on the type of deed.

  • warrant of seisin — assures that the grantor owns the estate to be conveyed, and has the right to do so

  • warrant of quiet enjoyment — assures that the grantee will not be disturbed by third party title disputes

  • warrant of further assurance — assures that the grantor will assist in clearing any title problems discovered later

  • warranty forever; warranty of title — assures that the grantee will receive good title, and that grantor will assist in defending any claims to the contrary

  • warrant of encumbrances — assures that there are no encumbrances on the property except those expressly named

  • warranty against grantor’s acts — states the assurance of a trustee, acting as grantor on behalf of the owner, that nothing has been done to impair title during the fiduciary period