11.2 Deeds, Titles & Recording

Deeds, recording, and title assurance are where real estate law meets the paralegal's daily work. Expect exam questions that test the covenants in each deed type and the recording-act fact patterns.

Deed Requirements

A deed is the written instrument that transfers ownership of real property. To be valid it must:

1. Be in writing (the Statute of Frauds requires it);
2. Identify a competent grantor (the transferor) and a sufficiently identified grantee (the transferee);
3. Contain words of conveyance ("grant," "convey," "quitclaim") showing present intent to transfer;
4. Include an adequate legal description — typically metes and bounds, government (rectangular) survey, or a recorded plat/lot reference. A street address alone is risky;
5. Be signed by the grantor (the grantee's signature is not required);
6. Be delivered — the grantor's present intent to pass title, usually presumed when the grantee possesses the deed — and accepted.

Exam trap: the deed need not state consideration to be valid, though deeds recite "$10 and other valuable consideration" by custom. A deed with no consideration is still effective between the parties.

Types of Deeds

• General warranty deed — the gold standard. The grantor makes six covenants of title: the present covenants of seisin (grantor owns what she conveys), right to convey, and against encumbrances (breached, if at all, at delivery); and the future covenants of quiet enjoyment, warranty (grantor will defend title), and further assurances (breachable later and they run with the land to remote grantees).
• Special (limited) warranty deed — the grantor warrants only against defects arising during the grantor's own period of ownership. Common in commercial and estate sales.
• Quitclaim deed — conveys whatever interest the grantor has, if any, with no covenants at all. Used to clear title clouds, transfer between divorcing spouses, or cure errors. A quitclaim grantee has no warranty claim if title fails.

Title Search and Title Insurance

Before closing, the paralegal typically coordinates a title search — an examination of the county land records tracing the chain of title from the current owner backward (commonly 30-60 years), plus checks for liens, judgments, unpaid taxes, easements, and probate issues. The results are compiled in a title commitment (or preliminary report) listing requirements and exceptions. Title insurance then protects the insured against loss from title defects existing at the policy date — an owner's policy protects the buyer; a lender's policy protects the mortgagee and is required by most lenders. Unlike other insurance, the premium is paid once, at closing.

Two details earn their own bullet on the exam. A wild deed is a deed recorded outside the chain of title — for example, a grantee recorded before the grantor's own deed into the seller was recorded. Because a title searcher cannot find it by tracing owners, a wild deed generally does not impart constructive notice, so a later bona fide purchaser can win even though the earlier deed sits in the public records. And title insurance is not absolute: standard policies except defects the insured created or knew about, zoning and governmental regulation, and matters an accurate survey or physical inspection would reveal, which is why lenders often require a current survey.

Recording Acts

Recording gives constructive notice of an interest to the world. The three statutory schemes, with classic "O conveys to A, then conveys the same land to B" patterns:

A bona fide purchaser pays value and takes without actual, constructive (record), or inquiry notice of the prior claim. Most states have race-notice statutes; pure race statutes are rare.

Adverse Possession

Adverse possession lets a trespasser acquire title by possessing land in a way that is actual (using it as an owner would), open and notorious (visible, not hidden), exclusive (not shared with the true owner), hostile (without the owner's permission), and continuous for the statutory period (commonly 5-20 years depending on the state). Successive possessors may add their periods together through tacking if they are in privity (a voluntary transfer, such as a deed or lease between them). Exam trap: permission defeats hostility, so a tenant can never adversely possess against the landlord while the lease stands.

Easements

An easement is a nonpossessory right to use another's land. An easement appurtenant benefits a dominant parcel and burdens a servient parcel — it runs with the land when either parcel transfers. An easement in gross benefits a person or company personally (a utility company's right to run lines); it is generally not transferable unless commercial. Easements are created by express grant, implication (prior use or necessity), prescription (adverse-possession-style use over the statutory period), or necessity. By contrast, a license is mere revocable permission — a ticket to a concert — and a profit is the right to enter and take resources such as timber or minerals.