Buying a new home can become very exhausting. After weeks (or even months) of open houses and negotiations, most people are tired and want to settle into their dream home as quickly as possible.
Unfortunately, a few of the last minute formalities of real estate transfers are very important. Before a transfer of property occurs, the real estate deed must be transferred from the seller to the buyer.
Most people are familiar with the process of selling property. With a car, for example, one simply signs over the title. Because of that, transferring a deed may seem simple at first glance. This, however, could not be further from the truth. Deeds are the ultimate evidence of real property ownership that carry significant legal and financial consequences. A simple mistake in a legal description on a deed could lead to serious consequences years in the future. Quite simply, transferring title by a deed should never be done without the assistance of an attorney.
Litigation involving improperly or mistakenly drafted deeds is commonplace. Oftentimes, when sales or gifts of property are between family members or friends, people draft the deeds themselves. If the property is ever sold to a third-party, however, or if another family member contests the sale, an improperly drafted deed can have serious consequences. Fixing these issues years down the road may be difficult if the parties have died or can no longer be located. A few minutes of work from a deed transfer lawyer now can save countless headaches in the future.
At Moshes Law, P.C., our staff of real estate deed transfer lawyers can anticipate and preemptively solve any issues that may arise. We commonly advise clients on the following:
What is a deed? A deed is a legal document that provides evidence of real estate transfers. A deed is the starting point when determining legal title to a parcel of real property.
In the case of a home sale, a deed transfer identifies the buyer (grantee) and seller (grantor), provides a legal description of the property, and contains the grantor’s signature.
Once the real estate deed document is completed the signature must be notarized for the transfer deed to become effective.
While it is possible for a home buyer and a home seller to figure out how to fill out a transfer deed on their own, it is a complex document requiring great attention to detail.
Most home buyers find it easier to delegate the task to a property transfer lawyer
There are many different types of property deeds. Some types of deeds you may have heard of before such as quitclaim deeds and warranty deeds, but there are several other types of deeds as well.
Your deed attorney can provide advice on which deed is best suited for your transfer of property.
– Quitclaim Deeds: A quitclaim deed is one of the most commonly used deeds to transfer property rights primarily because of its simplicity. In fact, it is by far the simplest type of deed.
A quitclaim deed transfers property without providing the new owner with any guarantees or legal warranties of any type.
It simply transfers the property interest of the grantor (whatever legal interest that may be) to the grantee.
For this reason, receiving a quitclaim deed from a property seller can be very risky because a quitclaim deed does not even guarantee that the grantor has any ownership interest at all in the property.
For this reason, never accept a property transfer via quitclaim deed from a stranger and always hire an attorney to double-check the legal chain of title.
– General Warranty Deeds: In contrast to a quitclaim deed, a general warranty deed is the most complex and most legally secure type of deed.
A general warranty deed pledges that the grantor owns the property free and clear of any outstanding liens, mortgages, or other legal encumbrances against it.
If the new owner later discovers a title defect, the grantor will be responsible for that breach of warranty even if the grantor did not know about the defect.
Because general warranty deeds provide such substantial protection to home buyers, home sellers are often reluctant to agree to a general warranty deed, and therefore they can be quite uncommon.
– Special Warranty Deeds: Special warranty deeds are one of the most common types of deeds in residential real estate transactions such as home sales.
A majority of homeowners likely have special warranty deeds. This type of deed provides assurances that the seller previously owned the property and that he or she did not encounter any issues with title during ownership.
Essentially, a special warranty deed protects the buyer from any of the seller’s actions which may have adversely affected title, but it does not come with the same broad-sweeping protection of a general warranty deed.
– Grant Deeds: Like a special warranty deed, a grant deed provides less-than-perfect title protection, but it is a useful deed in certain circumstances.
The primary guarantee of a grant deed is that the grantor owns the whole property he or she is claiming to transfer and that no prior transfer has occurred.
The grant deed is also used to identify easements running across the property or any other title defects.
The new owner takes title to the property subject to any exceptions to the guarantee which are explicitly listed.
– Bargain Deeds: A bargain deed (occasionally referred to as a “bargain and sale deed”) sits between a special warranty deed and a quitclaim deed.
Whereas a quitclaim deed makes no warranties of any kind, a bargain and sale deed warrants that the seller at least owns the property. Bargain deeds do not make any warranties against encumbrances to title.
This is the most common deed type used in New York. Like in the case of a quitclaim deed, always consult a deed transfer attorney before accepting a bargain deed.
– Transfer-on-Death Deed: This is not a deed available to property owners in New York and is very uncommon elsewhere.
The deed simply specifies that if the deed will automatically transfer to the grantee upon the death of the grantor.
If you are looking to move to New York from out of state and your out of state property has a Transfer-on-Death deed, consult a deed transfer attorney for additional information.
There are several different life events that may require home buyers or home owners to consult a deed transfer attorney. In some cases, this will involve making an entirely new deed.
In others, it may be simply altering the existing deed. The following circumstances may necessitate a change in deed status:
Generally, the cost of filing a deed with the Register’s Office is nominal. The ultimate cost, however, will vary based on the type of transfer the parties agree to. There are other costs as well, such as real estate transfer taxes, that must be filed with and paid to the state and often the local governmental body where the property is located.
Filing a deed yourself, without the assistance of an attorney, is by far the cheapest method to transfer title of real property. If you do choose to file a deed yourself, you must ensure that you put in the time and effort to do it properly. While the local Register’s Office will maintain the deeds of record, they will not assist you in filling the deed and oftentimes will not point out errors in the paperwork. At the very least, have a qualified real estate lawyer review the deed and walk you through the filing process.
First, you will want to hire a qualified deed attorney to prepare and file the real estate transfer deed. You will need to provide basic information about the property and any individuals who will be listed on the title. With this information, the real estate attorney will make inquiries about title to ensure it is secure and to establish a legal definition of the property. From there, the deed transfer attorney will prepare a new deed which will need to be signed and notarized.Once the deed is signed and completed, the conveyance process is essentially complete.However, to provide the most protection to your property transfer, you will need to record the new deed in the county where the property is located. The recording of a deed essentially provides protection against other claims to ownership of the property.
No. While an attorney does not legally have to prepare a deed, deed drafting is typically done by attorneys. This is because deed requirements have been created over years of litigation. As long people have been around, they have been suing each other for property ownership. Lawyers review these cases and draft deeds that will comply with all formal requirements.
Additionally, deeds in New York utilize a “Metes and Bounds” description to describe the property. Understanding and drafting a metes and bounds description is difficult without practice.
There are many ways to change a deed, depending on the problem with the existing deed. All deed changes, however, must be filed with the local Register’s Office. To change an improper name on a deed, for example, the current owner of the property will need to track down the former owner and have him or her sign a corrective deed. That deed will then be filed with the Register’s Office. If that individual cannot be found or is deceased, other more complex methods of correcting the deed are available.
A deed in New York is generally a short document. It will identify the grantor (seller) and the grantee (buyer) by their legal names and addresses. The deed will then go on to list the “legal description” of the property. In New York, this is a “Metes and Bounds” description. The description is typically created by a land surveyor either when the parcel was originally created or modified. A deed in New York may then contain a number of other things, such as statutorily required language, any special warranties that are given, easements or other encumbrances of record, and more. While only the grantor needs to sign the deed, deeds typically contain both parties’ signatures.
While you do not need a lawyer to remove a name from a deed, a lawyer should generally be consulted. Whenever property is being transferred, there are a number of issues that must be considered. These include triggering real estate transfer taxes, uncapping property tax assessments, and mistakenly identifying the property of the parties. Because of this, a lawyer should always be consulted before removing a name from a deed.
The simplest way to transfer property to a family member is to contact a real estate attorney. Transferring property to a family member is oftentimes a simple exercise that experienced attorneys can quickly complete. As previously discussed, however, there are always issues that must be considered, such as property tax assessments and transfer taxes. Most real estate attorneys deal with deeds on a consistent basis and can quickly guide you through this process.
Yes. A deed is proof of ownership of real property and the house located on it. The only way to assert ownership of real property to which you do not have a deed is by filing a lawsuit against the current owner of record.
Whether you’re purchasing property or transferring it to a family member, a deed transfer is in your future.
At the Law Office of Yuriy Moshes, our real estate attorneys are experts at helping New Yorkers transfer deeds in Manhattan, Brooklyn, Queens, the Bronx, and Staten Island. Make sure your transfer is done right and avoid future issues by contacting the Moshes Law, P.C. today.