Deeds, Delivery, Warranties of Title, and Fixtures

Deeds: Formal Requirements

The deed is the instrument that actually transfers ownership of land; it supersedes the contract at closing under the doctrine of merger. To be valid a deed must satisfy a short list of formalities:

• A writing that satisfies the Statute of Frauds.
• Identification of the grantor and grantee with reasonable certainty (a grantee must be identifiable, though not necessarily named at the moment of delivery in some jurisdictions).
• Words of grant showing a present intent to convey (e.g., “grant,” “convey”).
• An adequate description of the land — one sufficient to locate the parcel; minor errors that still allow identification do not void the deed.
• The grantor's signature.

Notably, consideration is not required to make a deed valid — a gift deed passes title. (Consideration matters only collaterally, e.g., to qualify a grantee as a bona fide purchaser under the recording acts.) Likewise, recording is not required for the deed to pass title between grantor and grantee; recording protects the grantee against third parties but is not an element of a valid conveyance.

Delivery and Acceptance

A validly executed deed transfers nothing until it is delivered. Delivery is a question of the grantor's present intent to make the deed immediately operative — to part with control — not merely the physical handing over of paper. Manual transfer raises a presumption of delivery, but the controlling question is intent.

• Conditional delivery to the grantee. If the grantor hands the deed directly to the grantee subject to an oral condition (“this is yours when I die”), most courts hold the condition void and delivery absolute — title passes free of the condition.
• Delivery to a third party / escrow. A grantor may deliver the deed to an escrow agent to hold until a condition (typically payment) is met; on satisfaction, title passes, and in some cases relates back to the date of the escrow delivery.
• Death-escrow. Delivery to a third party with instructions to give the deed to the grantee on the grantor's death can be a valid present transfer of a future interest, provided the grantor gives up the right to retrieve the deed.

Acceptance by the grantee is also required, but the law presumes acceptance whenever the conveyance is beneficial to the grantee. A grantee may, of course, expressly reject a deed.

Estoppel by Deed

When a grantor conveys land by warranty deed that the grantor does not yet own, and the grantor later acquires title to that land, the after-acquired title passes automatically to the grantee by estoppel by deed (the doctrine of after-acquired title). The grantor is estopped to deny that he had the title he purported to convey. The doctrine traditionally applies to warranty deeds, not pure quitclaim deeds (which warrant nothing), though some courts apply it where the quitclaim purports to convey a specific estate.

Against a subsequent bona fide purchaser from the original grantor after the grantor acquires title, the recording acts may cut off the first grantee's estoppel interest if the first deed was outside the searchable chain of title.

Deed Types and the Six Covenants of Title

The type of deed the seller delivers determines what title assurances the buyer receives. Three types appear on the bar.

A quitclaim deed still passes whatever title the grantor actually holds; it simply makes no promises. Importantly, the implied covenant of marketable title in the underlying land contract is independent — a seller who contracted to convey and then tenders a quitclaim has still breached the contract's marketable-title obligation if title is in fact defective, because the deed type does not waive the contract promise unless the contract expressly permitted a quitclaim.

The Six Covenants — Present vs. Future

A general warranty deed contains six covenants, split into three present covenants and three future covenants. The distinction controls when each is breached and whether it runs with the land to remote grantees.

Present covenants — breached, if ever, at the moment of delivery; the statute of limitations runs from delivery; they do not run with the land (the cause of action belongs to the original grantee and is a personal chose in action):

1. Covenant of seisin — the grantor warrants he owns the estate he purports to convey.
2. Covenant of the right to convey — the grantor has the power/authority to transfer (e.g., not barred by a disability or another's interest). Often coextensive with seisin.
3. Covenant against encumbrances — there are no undisclosed liens, mortgages, easements, or restrictions on the property.

Future covenants — not breached until the grantee is later disturbed in possession; the statute of limitations runs from the disturbance; they run with the land and may be enforced by remote grantees:

1. Covenant of warranty — the grantor will defend against and compensate for lawful claims of superior title.
2. Covenant of quiet enjoyment — the grantee will not be disturbed in possession by a lawful claim of superior title (functionally overlaps with warranty).
3. Covenant of further assurances — the grantor will execute whatever additional documents are reasonably necessary to perfect the grantee's title.

A classic MBE pattern: an undisclosed easement exists at the time of conveyance. The covenant against encumbrances (a present covenant) is breached at delivery, so a remote grantee — who was not party to that original deed — generally cannot sue the original grantor on it, but can sue on the future covenants (warranty/quiet enjoyment) once the easement holder actually interferes, because those run with the land.

Fixtures: When a Chattel Becomes Realty

A fixture is a chattel so attached to or associated with land that the law treats it as part of the realty. The characterization matters because, by default, a deed conveys all fixtures along with the land, a mortgage on the land covers its fixtures, and a departing seller may not remove fixtures. Courts weigh three factors, with objective intent of the annexor controlling:

• Annexation — the degree and permanence of physical attachment. The more firmly an item is affixed (bolted, wired, built in, embedded), the more likely it is a fixture. Items removable without material damage lean toward remaining chattels.
• Adaptation — how essential the item is to the use of the land. A custom-cut storm window, a furnace, or a built-in appliance fitted to the structure is adapted to the realty and likely a fixture even if lightly attached.
• Intent — the objective intention of the person who annexed the item, judged from the surrounding circumstances (not secret subjective intent). A homeowner who installs a chandelier intending it to stay generally creates a fixture.

Trade Fixtures

A crucial exception protects commercial tenants. Trade fixtures — items a tenant annexes to the leased premises for use in the tenant's trade or business (display counters, restaurant equipment, salon stations) — remain the tenant's personal property and may be removed before the lease ends, so long as removal does not cause substantial damage to the premises and the tenant repairs any injury caused by removal. Items not removed by the end of the term are deemed abandoned to the landlord. The same removability favor is extended in some jurisdictions to domestic and agricultural fixtures installed by tenants.

Between a seller and buyer of land, by contrast, there is no trade-fixture exception — anything that has become a fixture conveys with the land unless the contract reserves it.

A Brief Note on Deeds of Trust

Most jurisdictions secure real estate loans either with a mortgage (a two-party security instrument between borrower-mortgagor and lender-mortgagee) or with a deed of trust. A deed of trust is a three-party instrument: the borrower (trustor) conveys legal title to a neutral trustee to hold as security for the lender (beneficiary). It functions economically like a mortgage, but it characteristically authorizes the trustee to conduct a nonjudicial foreclosure by power of sale on default, which is faster and cheaper than judicial foreclosure.

California is a deed-of-trust state, and the nonjudicial trustee's-sale process is the dominant foreclosure mechanism there. (The detailed mechanics of foreclosure priority, redemption, and deficiency limits are treated in the mortgages and security-interests materials; here it is enough to recognize the deed of trust as a mortgage substitute that passes a security title to a trustee.)

Exam Strategy

For a transfer problem, confirm the deed's formal validity, then test delivery (grantor's present intent) and presumed acceptance; raise estoppel by deed whenever a grantor conveyed land he did not yet own and later acquired it. For a title-defense problem, identify the deed type to know which covenants exist, then place the alleged breach on the present/future timeline to determine the limitations trigger and whether a remote grantee may sue.

For “does it stay or go” disputes over attached items, run annexation, adaptation, and objective intent, and check the trade-fixture exception when the annexor is a commercial tenant.