Fairfax Deed Attorneys
Compassionate and Professional Legal Advocates
Many circumstances, including the sale of property, a divorce, or the death of a loved one may require property ownership to be transferred from one party to another. A deed is a document by which the grantors, the owner or owners of property, transfer an interest in real estate to the grantees, the individual or individuals to whom the interest is transferred. It is advisable to work with an experienced lawyer, like the real estate team at Keithley Law, PLLC, to help you to avoid costly mistakes.
Creating a Deed
Ensuring that a deed both accurately reflects the intentions of the parties and meets the requirements to be recorded in the land records involves some complexity.
Separate from the independent requirement that the signatures be notarized, § 17.1-223 of the Code of Virginia of 1950, as amended, imposes several specific rules regarding the form of deeds that are not submitted with an appropriate cover page:
- The deed must include the names of all grantors and grantees.
- Each individual’s name must be either underlined or in all capital letters when it first appears in the deed.
- The first page of the deed must list the name of the person or entity that drafted the deed.
- If the deed is exempt from recordation tax, the basis for the exemption must be stated on the face of the deed. For example, deeds “transferring property pursuant to a decree of divorce or of separate maintenance or pursuant to a written instrument incident to such divorce or separation” are exempt from recordation taxes, pursuant to §58.1-811(A)(15).
Note that individual county clerk’s offices may also have county-specific requirements, including cover pages and property identification numbers.
Types of Deeds in Virginia
Virginia recognizes three types of deeds, which are defined by the level of protection, or warranty, against title claims afforded to the grantees.
Pursuant to §55.1-354 of the Code of Virginia of 1950, as amended, a General Warranty Deed involves a covenant, or promise, by the grantor “that he and his heirs and personal representatives will forever warrant and defend such property unto the grantee and his heirs, personal representatives, and assigns against the claims and demands of all persons.” In other words, the grantor in a General Warranty Deed warrants the title against any claim that may arise, including claims based on events that occurred before he owned the property. This provides the grantee, typically a purchaser of residential real estate, with the greatest possible protection, while resulting in the largest possible liability for the grantor.
Section 55.1-355 explains that A Special Warranty Deed involves a covenant by the grantor that “that he and his heirs and personal representatives will forever warrant and defend such property unto the grantee and his heirs, personal representatives, and assigns against the claims and demands of the grantor and all persons claiming or to claim by, through, or under him.” A Special Warranty Deed, therefore, makes the grantor liable for title claims based on issues that arose during his ownership of the property.
Quitclaim Deeds do not include any warranties regarding title, and the grantor merely conveys whatever interest he has in the subject property. This form of deed is, therefore, generally inappropriate for real estate purchases and is often used to remove a former spouse from the title, pursuant to divorce proceedings.
Other, more specialized deeds, can help a grantor to achieve certain estate planning objectives and avoid the time and expense associated with probate after they die. For example, in a life estate deed, the grantor conveys ownership of the property to a grantee, known as a life tenant, for the duration of the grantee’s life and specifies what happens to the interest when the life tenant dies. For example, a father who owns a property could grant himself a life estate, ensuring his ability to live in the home until he dies, and designate his child as the remainderman, meaning that the child would hold title to the property after the termination of the life estate. Neither party can change this arrangement without filing an appropriate document in the land records that bears both of their signatures. A Transfer on Death deed can serve the same function, but, pursuant to the Uniform Real Property Transfer on Death Act, the grantor can revoke the transfer at any point before their death because no interest is conveyed until that event occurs.
Deeds with Concurrent Owners
- Tenants in Common: Absent contrary language in a deed, a tenancy in common is the default form of concurrent ownership of real estate in Virginia. Tenants in common each own an undivided interest in the property that they can alienate without the consent of the other co-owners. These interests can be unequal and acquired at different times. When a tenant in common dies, his heirs inherit his interest, and it does not pass automatically to the other co-owners.
Joint Tenants: Joint tenants hold equal interests in a property that they obtain at the
same time and through the same instrument. Section 55.1-135 of the Code
of Virginia of 1950, as amended, explains the language necessary to ensure
both the creation of a joint tenancy and that the interest of a deceased
joint tenant pass to the remaining co-owners, if that is the intention
of the parties:
- "Any persons may own real or personal property as joint tenants with or without a right of survivorship. When any person causes any real or personal property, or any written memorial of a chose in action, to be titled, registered, or endorsed in the name of two or more persons "jointly," as "joint tenants," in a "joint tenancy," or other similar language, such persons shall own the property in a joint tenancy without survivorship as provided in § 55.1-134. If, in addition, the expression "with survivorship," or any equivalent language, is employed in such titling, registering, or endorsing, it shall be presumed that such persons are intended to own the property as joint tenants with the right of survivorship as at common law."
- In the absence of survivorship language, however, the share of the deceased co-tenant “shall descend to his heirs, pass by devise, or go to his personal representative, subject to debts or distribution, as if he had been a tenant in common,” pursuant to § 55.1-134. Like tenants in common, joint tenants can alienate their interest in the property without the consent of the other joint tenants, which destroys the joint tenancy, leaving the co-owners as tenants in common.
- Tenants by the Entirety: A tenancy by the entirety is similar to a joint tenancy with right of survivorship, except it is limited to spouses who cannot alienate their interest or subject the property to the claims of their individual creditors without the consent of the other spouse.
If you have questions about the best way to transfer an interest in real property, then it makes sense to consult an experienced attorney. While many conveyances of real property are relatively straightforward, the specific language of deeds often raises issues that are not obvious to the untrained eye. Our legal team at Keithley Law, PLLC can take a look at your documents and other relevant factors to help you determine your next steps in the deed transference process.