In the state of Tennessee, land can be transferred through multiple means, including a conveyance, such as a contract for the sale of land; a devise, meaning a disposition by a last will and testament; a grant; or another assurance of title.
How a property owner uses a parcel depends on local zoning regulations. Sometimes, when a single parcel is divided into many parcels, all of them will be bound by the same restrictions.
Every grant or devise of real estate conveys the whole estate. The exception to this rule is if the intent to pass an estate with a restriction is in express terms or necessarily implied in the terms of the contract or other instrument of conveyance.
Type of Conveyance
What Is Conveyed
Language Used for Conveyance
Deed in fee with general warranty
The entire property, and the new owner is given a general warranty of good title
“I hereby convey to A. B. the following tract of land (describing it) and I warrant the title against all persons whomsoever."
Covenants of seisin, possession and special warranty
The entire property, with a warranty only against concerns that arose during the lifetime of the person conveying the property
"I covenant that I am seized and possessed of this land, and have a right to convey it and I warrant the title against all persons claiming under me."
Whatever interest the person transferring the land has in the property
"I hereby quitclaim to A. B. all my interest in the following land” (describing it)."
For a mortgage
The entire property, subject to the mortgage
"I hereby convey to A. B. the following land (describing it), to be void upon condition that I pay."
For a deed of trust
The entire property, held in trust by a neutral and independent third party until the loan on the property is paid.
"For the purpose of securing to A. B. a note of this date, due at twelve (12) months, with interest from date (or as the case may be), I hereby convey to C. D., in trust, the following property (describing it). And if the note is not paid at maturity, I hereby authorize C. D. to sell the property herein conveyed (stating the manner, place of sale, notice, etc.), to execute a deed to the purchaser, to pay off the amount herein secured, with interest and costs, and to hold the remainder subject to my order. "
Date of Conveyance
The effective date of the conveyance of real property is the date of the instrument of conveyance.
The date is not affected by a notary acknowledgment in the conveyance which may be dated prior or subsequent to the date of the conveyance. A notary acknowledgment is a statement that an individual who signed the form is actually the person with that name.
If an instrument conveying real property is not dated, but contains a notary acknowledgment which is dated, the effective date is the date of the acknowledgment. If the instrument is not dated, but contains more than one notary acknowledgment containing more than one date, the latest date of a notary acknowledgment in the instrument is the effective date of the instrument.
The signer is typically required to show a photo identification to prove they are the person with that name.
Correction of Errors
When there is a mistake in the deed of conveyance or the registration of it, the person who is injured by the mistake should submit a petition to the circuit court of the county in which the land is situated. The petition should explain the nature of the mistake and how the person was injured or could be injured by the error.
Before the court hears the petition, the petitioner must advertise for three weeks in a newspaper in the judicial district where the land is located.
If there is no newspaper in the district, the owner should publish the notice in the newspaper of the adjoining district. They should explain the substance of the petition and the term at which the petitioner will apply for a hearing. The publication must be posted at least 30 days before the court will hear the petition.
Service of Written Notice
The court can direct written notice to be served on persons who may be interested in, or affected by, the relief the petitioner seeks, unless the court previously gave them notice. When a person opposes the petition being granted, they should personally enter the case as a defendant. Both the petitioner and the defendant must pay a fee to be engaged in the case.
Court Hearing Procedure
At the hearing, the court examines the testimony from the petitioner about the mistake in drafting the deed. If circumstances warrant, the court shall order the mistake to be fixed to align with the intention of the parties. The court will also order the register of the county in which the land sits to register the conveyance to be in agreement with the correction.
Either the petitioner or the defendant can appeal from the court’s judgment or prosecute a writ of error. A writ of errors allows a superior court to correct the mistakes of a lower court.
Types of Restrictions
Unrestricted land is land that may not be bound by the restrictions that homeowner’s associations typically place on development. A property owner may be able to build whatever type, color, style and size of home they want on such land, subject to getting the appropriate building permits.
The owner must also ensure that the structure meets local building codes and zoning regulations can limit the use of unrestricted land. A parcel zoned for residential use typically may not be developed into a multi-level apartment complex, even if the contract says the land is unrestricted.
Rulings on Unrestricted Land
Although the term “unrestricted land” in an instrument appears to mean the land is free from restrictions, there are circumstances under which a court can rule that the unrestricted land is actually subject to deed restrictions and easement restrictions.
For example, if the contract says “unrestricted land,” but goes on to provide that only certain architectural styles of homes can be built on the property, the court is likely to hold that the buyer must choose among the styles named in the contract.
Restrictive Covenants on Property
Deed restrictions state which types of structures can be on a property. There are typically deed restrictions for homes in communities such as gated developments. Deed restrictions help ensure that homes in the neighborhood conform to certain standards.
Typically, deed restrictions address features on the outside of the house, such as fences, how far the home is set back from the street and how far homes are set apart from each other. Yet deed restrictions may limit architectural styles and details as minute as styles of mailboxes. Deed restrictions can also relate to occupancy, such as how many vehicles can be parked outside a home.
In Tennessee, deed restrictions do not expire unless there is a written expiration date in the deed or other instrument of conveyance. This does not mean the court will always uphold deed restrictions as valid. The court is less likely to hold a deed restriction as valid if multiple neighbors with the same restrictions have violated their restrictions without being penalized.
Free and Unrestricted Use of Land
Tennessee law generally favors the free and unrestricted use of land. A party cannot restrict the use of another person’s land by recording deed restrictions on the land after selling the property. For example, a person who sold a lot in 1953 without restrictions cannot record restrictions for the property in 1955 and claim the property is now bound by the restrictions.
Operations of Easement Restrictions
An easement is the right to cross or utilize another party’s property. An easement restriction may not be visible, but it will exist in the instrument conveying the property. Easement restrictions may affect utilities, like gas and sewer lines. There may be aerial easements, or restrictions in air space, for power lines over a parcel of land.
An example of an easement is a right to enter a neighbor’s backyard if that backyard has a turn-off water valve for an entire row of condominiums. In that case, access will be necessary if a unit in the middle of the row needs to turn off the water to engage in repairs.
What Is Recordation Tax?
When land in the state is sold, a recordation tax must be paid. This is a combination of the realty transfer tax and the mortgage tax. This tax is imposed on all transfers of real property that involve a deed, decree or other instrument that shows proof of transfer record. Typically, the grantee or transferee who receives the property pays the realty transfer tax.
The mortgage tax is imposed on the recordation of instruments that evidence indebtedness like mortgages. It is also imposed on deeds of trust, conditional sales contracts and financing statements. The debtor on the mortgage contract pays the mortgage tax.
The money is owed to the county register of deeds or the Tennessee Secretary of State, depending on the property that is transferred. Typically, the recordation tax is collected to the county register of deeds, who remits it to the state department of revenue.
What Are Open Spaces?
Green and open spaces are areas that the state, county or municipality intentionally does not develop. Land use may range from parks and playgrounds to nature trails and community gardens. Green and open spaces have many functions, including reducing air pollution in urban environments, allowing people to reconnect with nature, and naturally filtering storm water.
Some green and open spaces are owned by a city or county and are open to the public to enjoy. Others are owned by land trusts and closed to the public for conservation purposes.
What Is Recreational Land?
Recreational land is property used for recreational purposes, such as hunting, fishing, swimming or camping. Recreational land is usually found in rural areas, like spots close to mountains, lakes, rivers and forests. A person may be able to build on recreational land in Tennessee, depending on how the property is zoned.
Recreational land is not one of the formal categories of land recognized by the Tennessee Department of Revenue. Property tax for different types of land is based on how the property is used.
A property owner can calculate their property tax by multiplying the appraised value of the property by the assessment ratio for the property’s classification. Then that figure should be multiplied by the tax rate. The assessment ratio is set by the county commission and municipal government. Tax rates depend on the services that the local government provides, as well as the value of the county’s tax base.
Commercial and industrial property
Public utility property
Business personal property
Subdivision of Land
The process of subdivision involves dividing land into parcels for sale or development. A subdivision is usually accomplished by a plat, a cadastral map (map showing the boundary lines of real property) drawn to scale. The original single parcel is called a subdivision, and a subdivision used for housing is called a residential subdivision.
There may be a single property owner or many property owners of land in a subdivision. A city, such as Nashville, can pass subdivision regulations. Such regulations act to benefit the neighborhood and the city by requiring the preservation of natural areas such as streams, floodplains and native forests. The tradeoff for the protection may be an allowance for flexibility in lot size in a residential subdivision.
Rules for Building Permits
A person who wants to build a residential structure must obtain a building permit from the state and abide by state regulations regarding building. The cost of the permit is based on the estimated cost of construction. A city or county can opt out of such regulations at any time through an opt-out resolution.
A property owner can purchase a building permit online or through a local agent who issues them. A property owner may not have to get a building permit to install a manufactured or modular home. They will need a permit if there is to be custom site work that is a part of an existing home, such as a deck or patio.
The property owner must pay an additional slab inspection fee if the building has a slab under a living space that is not a monolithic pour. In a monolithic pour, the footings, or the structures that support the foundation and prevent settling, are poured at the same time as the slab. A slab inspection is not needed for garages or unfinished basements.
How an Attorney Can Help
A real estate attorney can draft, alter or examine a contract for the sale of land. Parties should consult an attorney with experience in wills and trusts to explain how a will or trust can convey real property. A real estate attorney can also help a party negotiate a settlement about real property or represent them in court. A single attorney cannot represent parties opposed to one another, as this would be a conflict of interest.
- Tennessee Department of Health: Green and Open Spaces
- Nashville Tree Conservation Corps: New Environmental Protections for Residential Subdivisions
- Tennessee Department of Commerce and Insurance: Residential Permits
- Tennessee Department of Commerce and Insurance: Residential Permit FAQs
- Tennessee Department of Revenue: Recordation Tax
- Justia.com: Tennessee Code Annotated Section 66-5-103 Forms of Conveyances
- Tennessee Courts: Tennessee Supreme Court - Restrictive Covenants Do Not Apply to Land Sold Before Covenants Recorded
- Tennessee Department of Revenue: Property Tax
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.