California Partition Law Blog
A deed is a legal instrument, evidenced in writing, to confirm the ownership interest or legal rights of an owner of real property. Essentially, a deed is necessary to determine the titleholder of a piece of real estate. Moreover, a deed grants an owner of real property legal rights to convey, sell, or transfer the property. Therefore, when purchasing a piece of real property, it is extremely important for a person to obtain a deed in order to evidence their ownership in writing and protect their legal rights in the property.
However, a deed is not just a simple piece of paper establishing a person’s ownership interest in the property. There are several elements that are required in order for a deed to be valid. At the Underwood Law Firm, our attorneys are more than familiar with the elements of a deed and its effect on real property.
Elements of a Valid Deed
In order for a deed to be valid, there are several elements that need to be satisfied. If one essential element is not present in the deed, the deed will be considered void and, therefore, ineffective in transferring title to real property. (In re Marriage of Wozniak (2020) 59 Cal.App.5th 120, 133.) To be valid, a deed must be: (1) in writing; (2) name the grantor or the grantor’s agent; (3) signed by the grantor or their agent; and (4) delivered and accepted by the grantee. (Id.)
A deed must be in writing. The deed need not be recorded to be valid; however, many courts look at a recorded deed as evidence that a party was put on notice of an individual’s claim of ownership in the property. (Kimbro v. Kimbro (1926) 199 Cal.344; Hochstein v. Romero (1990) 219 Cal.App.3d 447, 452.)
A deed must be legally delivered to be valid. (Luna v. Brownell (2010) 185 Cal.App.4th 668, 673.) Delivery does not necessarily mean a physical delivery, but rather it is a question of intent. (Id.) Therefore, a manual transfer of the deed is not conclusive of whether the deed has been delivered, but rather it depends on whether the grantor intended to deliver the deed to the grantee. (Id.) Instead, the physical delivery of a deed acts as evidence of the grantor’s intent to deliver the deed and immediately transfer an interest in the property. (Id.) Similarly, the grantee must accept the deed for the deed to be valid. Therefore, a rejection of the deed will result in an invalid deed.
Further, in addition to the elements to ensure a deed is valid, there are several different types of deeds that exist.
A Grant Deed
A grant deed is one of the most common types of deeds used for real property. A grant deed is a deed that specifically grants an ownership interest in real property to the grantee. (Klamath Land & Cattle Co. v. Roemer (1970) 12 Cal.App.3d 613.) The form of a grant deed is set out in the Code of Civil Procedure, section 1092. In a grant deed conveying the real property of the grantor to the grantee, unless retrained by express terms in the deed, it is implied: (1) that previous to the time of the execution of the grant deed, the grantor has not conveyed the subject property or any right, title, or interest to any person other than the grantee; (2) that the subject property is free from encumbrances done, made or suffered by the grantor, or any person claiming under the grantor, at the time of execution of the grant deed. (CCP § 1113.)
Interspousal Grant Deed
An interspousal grant deed is a grant deed between a married couple. Essentially, an interspousal grant deed is a grant deed where one of the individuals in a married couple transfers an interest in real property to their spouse. The rules of the Code of Civil Procedure section 1113 also apply to Interspousal Grant Deeds.
Warranty Deed
A warranty deed is not a deed that is commonly used in California. Under a warranty deed, a grantee is granted a warranty to the title of real property by the grantor. Essentially, under a warranty deed, the grantor expressly warrants the title to the property. (Barberi v. Rothchild (1936) 7 Cal.2d 537, 540.) Under a warranty deed, the grantor covenants to defend against all lawful claims and estops himself from asserting adverse claims on his own behalf. (Id.)
Quitclaim Deed
A quitclaim deed is another common form of deed in California; however, it is a deed that grants the least amount of protection to a grantee. A quitclaim deed conveys only whatever interest the grantor has in the subject property at the time of conveyance. (In re Marriage of Gioia (2004) 119 Cal.App.4th 272, 281.) However, unlike the grant deed, the quitclaim deed contains no warranties to protect an individual from adverse claims. (Id.)
An Example
“Shawn” is an attorney with a beautiful ocean-side house in Los Angeles. Shawn decided he wanted to move back home to Montana, where his family is. He decides to put the house up for sale, and within two months, he finds a buyer for the house named Julie. Shawn begins to draft a grant deed for the house to Julie in writing. Shawn then delivers the deed to Julie by driving to her apartment and handing it to her. Julie accepts the deed, shakes Shawn’s hand, and thanks him. When looking at the deed, Julie noticed that Shawn forgot to put his name and sign the deed; however, Julie did not think it was a big deal and ignored it.
After two years, Shawn decides to move back to Los Angeles, and now he wants his ocean-side house back from Julie. Julie refuses to sell it back to Shawn. Shawn then sues Julie, stating that he is the owner of the house because the deed transferring an interest in the house to Julie is invalid. Here, Shawn is correct. That the grantor’s name and signature be in the deed is an essential element to render the deed valid. Since Shawn’s name and signature is not in the deed, it is an invalid deed. Therefore, it is going to be difficult for Julie to prove her interest in the house since the grant deed is void.
How Can the Attorneys at Underwood Law Assist You?
The purpose of a deed is to convey an ownership interest in a piece of real property to a grantee by a grantor. A deed is a pertinent legal instrument that protects the rights of both a grantor and grantee; however, in order for the deed to be effective, it needs to be valid. To be valid, a deed needs to be in writing, contain the name and signature of the grantor, and be delivered to and accepted by the grantee.
As each case is unique, litigants would be well-served to seek experienced counsel familiar with the ins and outs of deeds and the law surrounding them. At the Underwood Law Firm, our knowledgeable attorneys are here to help. If you are seeking to draft a deed, are worried about the validity of your current deed, or if you just have questions, please do not hesitate to contact our office.
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