7.1 Deeds & Voluntary Alienation: Types, Covenants & Elements of a Valid Conveyance

Why Deed Mechanics Are Broker-Level Knowledge

A salesperson can spend a career without reading a deed closely. A broker cannot. Brokers review the transactional file, answer the seller's question about which deed the buyer's attorney is demanding, explain to a nervous purchaser why an estate is offering only an executor's deed, and recognize when a title problem is about to derail a closing. The PSI content outline devotes an entire domain to Transfer of Title, and it opens with types of deeds.

Voluntary alienation is the transfer of title by the owner's own act — sale, gift, dedication, or will. Involuntary alienation is transfer without the owner's consent, covered in Section 7.4.

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The Six Elements of a Valid Deed

A deed is a written instrument that conveys a present interest in real property. To be valid between grantor and grantee, it must contain:

1. A competent grantor. The person conveying must be of legal age and legally competent. A deed from a minor is voidable; a deed from someone adjudicated incompetent is void. Entity grantors convey through an authorized officer, member, trustee, or partner, and the authority must be traceable.
2. An identifiable grantee. The grantee must be named or described with certainty. A deed "to my children" without more may fail. A deed to a grantee who does not exist — a corporation never formed — is void.
3. Consideration. Recited consideration establishes that the conveyance was not a sham. Deeds routinely recite "$1.00 and other good and valuable consideration"; valuable consideration is money or its equivalent, good consideration is love and affection. In New Jersey the actual consideration also drives the Realty Transfer Fee and must be sworn to on the Affidavit of Consideration where one is required.
4. Words of conveyance (the granting clause). Language showing present intent to transfer — "grant and convey," "remise, release and quitclaim." The habendum clause ("to have and to hold") then defines the estate conveyed and must not contradict the granting clause.
5. An adequate legal description. The property must be described so that it can be located on the ground — metes and bounds, lot and block from a recorded plat, or reference to a prior recorded deed. A street address alone is insufficient.
6. The grantor's signature. Only the grantor signs. Acknowledgment before a notary or other officer is not required for validity between the parties, but it is required in New Jersey to make the deed recordable, and an unrecordable deed is a practical disaster.

Classic exam trap: Recording is not an element of a valid deed. An unrecorded, delivered deed is fully effective between grantor and grantee. What recording does is give constructive notice to the world and preserve priority.

Delivery and Acceptance

Title passes on delivery of the deed by the grantor with present intent to convey, coupled with acceptance by the grantee. Acceptance is presumed when the conveyance benefits the grantee. Practical consequences:

• A deed executed and locked in the grantor's desk conveys nothing.
• A deed delivered into escrow with irrevocable instructions is generally treated as delivered on the date it left the grantor's control once conditions are met — the relation-back doctrine, which matters when a grantor dies between escrow and closing.
• Returning or destroying a delivered deed does not reconvey title; a new deed running the other way is required.

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The Covenants of Title

Deed warranties are expressed as covenants. Three are present covenants (breached, if at all, at the instant of delivery) and three are future covenants (breached later, when someone actually disturbs possession).

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The Deed Spectrum, Strongest to Weakest

New Jersey's Customary Deed

New Jersey residential practice overwhelmingly uses the bargain and sale deed with covenants against grantor's acts. Under N.J.S.A. 46:4-6, that covenant is a promise that the grantor "has not done or suffered anything whereby the said premises are or may be encumbered" during their ownership. It says nothing about what happened before the grantor took title.

Brokers are asked constantly why New Jersey buyers accept so little warranty. The answer is structural: the buyer's protection comes from the title insurance policy, not from the deed. An owner's title policy indemnifies against defects arising at any point in the chain, is backed by an insurer's reserves rather than a seller who may be judgment-proof, and includes a duty to defend. That is a materially better remedy than suing a grantor on a covenant years after closing.

Special-Purpose and Statutory Deeds

• Executor's / administrator's deed — from a decedent's personal representative; the recital of authority and the surrogate's papers are the important part of the file.
• Sheriff's deed — issued after a foreclosure execution sale; conveys the interest foreclosed, and is exempt from the Realty Transfer Fee under N.J.S.A. 46:15-10.
• Deed in lieu of foreclosure — voluntary conveyance to the lender; the buyer's risk is that junior liens are not extinguished the way a foreclosure sale extinguishes them.
• Trustee's deed — from a trustee acting under a trust instrument; verify the trustee's power to sell.
• Correction (confirmatory) deed — fixes a scrivener's error; recites the prior deed's book and page.

Broker practice point: If a listing is being sold by an estate, a trust, or an institution, tell the buyer's side early which deed will be delivered. A buyer's attorney who learns at attorney review that only a quitclaim is on offer will disapprove the contract, and a preventable deal death lands on the listing broker.