State law defines the requirements for a property deed, which is a written instrument that transfers ownership of real estate between a seller and a buyer. A property deed is a physical document, typically between one and two pages long, that transfers an interest in land. Many states, including California, have laws that formalize the statute of frauds, which requires that an agreement for the sale of real property be in writing and signed by the buyer, the party to be charged.
Requirements for Property Deeds
A property deed must contain the names and addresses of the buyer, also known as the grantee, and the seller, also known as the grantor. A deed must contain a legal description of the property with references to points such as roads and boundaries. A deed must also contain the signature of the full name of the buyer, the party to be charged. The signature must be consistent with the name of the buyer as listed in other documents related to the sale.
A property deed must contain language regarding the transfer of ownership of the property. The language may be called a granting clause or words of conveyance. A property deed also must contain information to show the price or goods that the seller received for the property. This language is called the consideration clause.
If the property is in a plotted subdivision, the property deed will state the name of the plot and information regarding it. The property deed will also list conditions that go along with the transfer, such as easements. A county recorder’s office may also require that a property deed contain an assessor’s parcel number (APN); a documentary transfer tax declaration; a “when recorded mail to” address; a mailing address for future tax statements; and the name of the city where the property is located. If the area is unincorporated, it must be specified by name or location.
Language in a Property Deed
The legal description of a property must distinguish it from other parcels of real estate. For example, a legal description may state the street address of the property; the lot or tract on which the property is located; the county or parish in which the property sits; the size of the property, typically in acreage if it is large; and the building on the property. The buildings may include a residence, garage, barns and small permanent structures, such as outhouses and sheds. The legal description may note the purpose for which the buildings were being used, such as if a building was being used as a pipe storage room. A legal description may also list woods for timber, fields for agriculture and the gardens on the property.
Further, the legal description of a property may name the immediate prior owner and the length of time for which that person, persons or entity owned the property. The legal description may note which buildings and improvements on the property are excepted from the deed. Alternatively, it may state a general exception from the sale for any buildings or improvements that are expressly reserved by the seller. The legal description of a property may also include reference to a river or other natural feature of the landscape, as well as roads abutting the property. It may reference a survey plan, noting the author and date of the plan and describe or reference properties immediately adjacent to the property being described.
Language of conveyance usually contains words such as “I hereby grant.” A deed does not require witnesses or a seal. It may be dated, but does not need to be dated. The seller must be competent to convey the property, and the buyer must be capable of receiving the property.
Language in Property Tax Records
Property tax records do not contain enough information to constitute a legal description of a property. The person who is assessed the property tax may not be the legal owner of the property, so individuals should not rely on property tax records to make a determination of ownership. This is because there is a delay between transfer documents being recorded and the transfer to the new owner being reflected in the assessor’s records.
Conveyancing Forms to Transfer Ownership
Certain states, such as Minnesota, have uniform conveyancing forms for the transfer of real property. Parties who are engaged in a sale of property can use these forms instead of having an attorney draft a deed. The Minnesota Department of Commerce provides forms for warranty deeds, limited warranty deeds and quitclaim deeds.
A state-approved form should be used as-is and not altered. A form that is altered may not be accepted as an official document. Staff of the government agency that provides the forms is likely to be prohibited from offering legal advice, so a person who has questions about deeds and what they can accomplish should speak to a real estate attorney.
Liens Not in Deeds
A lien is a creditor’s claim against personal or real property. Liens against real property are typically recorded with the recorder in the county in which the property sits. For example, a creditor such as the California Franchise Tax Board can institute liens against real property such as vacant land, buildings and homes for debts owed to it. The state will record and/or file a notice of a state tax lien against the property owner. A lien typically turns up in a title search, but is not noted within the property deed itself.
Different Types of Deeds
There are many types of property deeds. A quitclaim deed is a document that allows the transfer of any claim (or ownership interest) that the maker of the document may have in the property. A general warranty deed gives the title and property to a specific person, usually the buyer. The buyer can hold the seller liable for defective title or an imperfect claim through the warranty.
A special warranty deed, also known as a limited warranty deed, guarantees title to the property only for the period of time that the seller held the title. A special warranty deed provides no assurance about previous holders of the title.
There are numerous other types of deeds, including joint tenancy deeds, corporation deeds, easement deeds, water deeds, timber deeds and mineral rights deeds. These types of deeds are customized deeds that may have unique qualities which vary in accordance with state law. To draft such deeds, a person should consult a real estate attorney. Alternatively, they may consult an attorney specializing in the type of resource being conveyed, such as a water law attorney.
Deeds of Trust
A deed of trust is an instrument that creates a mortgage on the property. The document takes legal title to real property and places it in one or more trustees. A deed of trust ensures that the borrower will repay the money or perform other conditions to satisfy the terms of the mortgage.
A deed of trust usually transfers title to the property to a trustee for a trust or title company. The company holds the real property as security against the borrower’s loan. When the borrower repays the loan in full, the title transfers back to them. A trustee typically only has the power to sell the property if the borrower defaults. A trustee will usually sell forfeited real property at a foreclosure sale auction.
Notarization and Deeds
When a document is notarized, this means that a state-licensed notary registered an acknowledgement of the buyer’s signature. Such a service involves the buyer providing proof of their identity to the notary. The buyer also declares to the notary that they willingly signed the deed. In New York, a notary public or a commissioner of deeds may take an acknowledgement of proofs of deeds. A commissioner of deeds is a public officer. They can be employed by a municipality like New York City.
Each state has different requirements for a notary’s act regarding the acknowledgment. California mandates that a notary who notarizes a deed must require the buyer to place their right thumbprint in the notary’s journal. If the right thumbprint is not available, the notary has the party use their left thumb or any available finger. This shall be indicated in the journal. If the party signing the document is unable to provide a thumb or fingerprint, the notary public shall indicate this in the journal and provide an explanation of that physical condition.
Where to Find Deeds
An individual can locate a deed at the office of the county or parish recorder in the county or parish where the property sits. The recorder collects a fee for performing services such as recording documents.
Fees vary by county or parish. Staff at the recorder’s office is prohibited from giving legal advice or assisting in document preparation. Staff also may not determine the legal rights and responsibilities of parties to the documents that they record. In some counties, such as Clark County, Nevada, it is possible to electronically record, or e-record, documents such as a deed. A buyer can e-record and pay fees for this service online.
A party should search for a deed by name. They can also search for deeds by recording date, document number and document title. Newer deeds may have the APN indexed. A party should not rely on searching by an APN to make a legal determination because a deed is not the only way to transfer property. Further, an APN can change and may be listed incorrectly on a deed.
What Else to Record
In some states, such as Minnesota, a party should also record additional documents along with a deed. Minnesota requires the inclusion of a well disclosure certificate with a deed. A person may search for well disclosure certificate information on the Minnesota Department of Health’s well management section website.
In California, a county may require that a party accompany a property deed with a preliminary change of ownership report (Form BOE-502-A). If a party does not present this form at the time they record the deed, the county may assess an additional recording fee. The amount of the recording fee is dependent upon the county. In Sacramento County, this fee is $20.
Documentary Transfer Tax
A city may impose a documentary transfer tax on documents such as a property deed that convey real property within its boundaries. In California, a documentary transfer tax is computed when the consideration or value of the interest or property conveyed exceeds $100, at the rate of 55 cents for each $500 or fractional part thereof. The county recorder’s office collects the tax on behalf of cities when the deed is recorded. There may be special rates for particular cities, for example, a $1.10 rate per $1,000 for Santa Monica.
The person preparing the document must make the calculations for the document tax transfer. Staff of the county recorder are not responsible for making the calculations. If the preparer of the deed determines there is no documentary transfer tax required, they must put a statement on the face of all the documents that they file that are exempt from the tax.
- California Civil Code: Section 1624, Manner of Creating Contracts
- California Franchise Tax Board: Liens
- The Law Dictionary: What Is a Quitclaim Deed?
- The Law Dictionary: What Is a General Warranty Deed?
- The Law Dictionary: What Is a Special Warranty Deed?
- California Secretary of State: 2020 California Notary Public Handbook
- Office of the City Clerk: Commissioner of Deeds
- Clark County Recorder: Homepage
- Minnesota Department of Commerce: Uniform Conveyancing Forms
- Ottertail County, Minnesota: Different Types of Deeds
- Minnesota Department of Health: Well Disclosure/Property Transfer
- The Law Dictionary: What Is a Deed of Trust?
- Sonoma County Recorder's Office: How to Get Property Ownership Info
- Sacramento County County Clerk/Recorder: Transferring Ownership of Real Property
- California State Board of Equalization: Preliminary Change of Ownership Report
- Los Angeles County, Registrar-Recorder/County Clerk: Documentary Transfer Taxes
Jessica Zimmer is a journalist and attorney based in northern California. She has practiced in a wide variety of fields, including criminal defense, property law, immigration, employment law, and family law.