In Texas, how a person’s name can be removed from a real estate deed depends on the reason for the removal. If the person to be removed has died and that person had a will, the will should be filed for probate within four years after the person died. The executor named in the will, meaning the person who will pay debts and distribute assets of the estate, should create an executor's deed in order to transfer the property.
If the person to be removed has died and did not have a will, the administrator of the estate, a court-appointed individual to pay debts and distribute assets, must identify the deceased person's heirs in an affidavit or heirship before transferring the property through a deed.
If the person to be removed is alive, they should do a deed transfer, conveying their interest in the property to the new owner with a warranty deed.
Best Option and Encumbrances
A warranty deed offers new owners the greatest amount of protection. This type of deed ensures that the property is free and clear from encumbrances (restrictions). Encumbrances include taxes, assessments or liens on real property. Removing a party’s name on a deed removes them from the chain of title for the property.
What Is a Deed Transfer?
The transfer of a deed is accomplished by writing a new deed naming the parties who will own the property. The point is to leave out the name of the person who will no longer be named on the deed. The first step is to draft a new deed. The person who wants to remove themselves, or an attorney, can draft the new deed.
Next the grantor, the person conveying the property, should sign the deed. A notary public must validate the grantor’s signature. Then the grantor should deliver the deed to the grantee, the person who will receive the property; they must accept the deed.
Lastly, a party, usually one of the grantees, should file and record the deed with the local county clerk. It is appropriate to file the new deed with the county clerk's office where the real property is located. There is a fee to file the new deed with the county.
Fees to File New Property Deeds
The filing fee varies according to county. In Dallas County, the filing fee is $26 for the first page and $4 for each additional page. In Harris County, the real property filing fee is $18 for the first page and $4 for each additional page.
Warranty Deeds and Ownership
A warranty deed, also known as a general warranty deed, is the best instrument to transfer ownership. A warranty deed proves ownership in Texas or anywhere it is recorded. This type of deed states that the grantor holds title to the property free and clear of outstanding claims, liens or mortgages.
In other words, no restrictions exist that encumber the grantor’s right to transfer the property title. Further, a warranty deed protects the grantee against claims on the property. The majority of lenders require that an owner have a general warranty deed to finance the purchase of real property.
Special Warranty Deeds
A special warranty deed in Texas ensures that the grantor is not liable for defects and encumbrances in title that arise by, through, or under the grantor. A special warranty deed is the second best option to convey property. Language regarding special warranty deeds can be found in Texas Property Code Section 5.023.
This code section covers implied covenants, agreements that can be understood to exist by the presence of certain language in the deed.
The statute provides that unless the conveyance expressly provides otherwise, the use of the terms “grant” or “convey” means that the estate is free of encumbrances. In other words, if a deed does not contain implied covenants, it is a warranty deed.
Required Wording in a Special Warranty Deed
A special warranty deed must state that the transfer of property is “by, through or under the grantor, but not otherwise” or “the grantor remises (gives), releases, alienates and conveys” the property.
This language means that the grantor transfers the property with the implied covenants and that they are only liable for damages from defects in title that came into existence while they owned the property. If defects existed before the grantor bought or inherited the property, the grantor cannot be held liable for damages.
Special Warranty Deeds Do Not Guarantee Clear Title
A special warranty deed frees the grantor from responsibility for defects in a title that came to exist after they transferred the property. It is possible to sell a house with a special warranty deed in Texas, but the grantor may receive less for the property because they cannot guarantee free and clear title.
What Is a Deed Without Warranty?
A deed without warranty is a deed that transfers title but does not ensure that the title is free from claims. For example, if there is an encumbrance upon a property, like a neighbor with an easement, or a limited right to use a creek on the property, the grantee cannot sue the grantor for failing to provide free and clear title.
A grantor typically conveys property via a deed without warranty when the grantee agrees to assume the risk of not getting free and clear title to the property.
What Is a Quitclaim Deed?
A quitclaim deed is the fourth best option after a warranty deed, a special warranty deed and a deed without warranty, respectively. The difference between a quitclaim deed and a deed without warranty is a deed without warranty conveys title.
A quitclaim deed conveys whatever interest the grantor has in the property, which may not be title. A grantor should avoid the option of a quitclaim deed when possible.
Using a Quitclaim Deed
A grantor may use a quitclaim deed to convey their interest in land upon a divorce, to provide their former spouse with whatever claim the grantor had to the property. A grantor may also use a quitclaim deed to convey their interest in land to a family member, without have to go through the step of selling the property.
Texas Property Code Section 13.006 provides that after the fourth anniversary of the recording of a quitclaim deed, the deed will not affect the question of the good faith of a subsequent purchaser or creditor.
Further, the quitclaim deed is not notice to a subsequent purchaser or creditor of any unrecorded conveyance, transfer or encumbrance on the real property.
No Official Quitclaim Deed Form
There is no official form for a quitclaim deed in Texas. The clause to convey title in such a deed typically states, “I hereby quitclaim to A. B. all my interest in the following land (describing it).”
The description of the land should be a legal description, identifying the property by its location. If the property is in a subdivision, the description will usually give the name of the subdivision and the lot number. It may also refer to the map or plat in the public records of the county where the property was recorded.
No Removal Without Consent
If a person is named as a property owner on a deed, another person or entity cannot remove them from the deed without the first person’s knowledge and express consent. Express consent is typically evidenced by the first person’s signature. An act of fraud or forgery to remove the first person is illegal.
For example, an instance of fraud might involve a person asking a property owner to sign a home repair contract, but the contract was actually a deed. An instance of forgery could involve a person signing a property owner’s signature on a deed.
A deed that has been illegally created is void, even if it is recorded. The person who rightfully owns the property can challenge the deed’s validity and ask that a court set it aside.
Fraudulent Liens on Property
If a fraud is obvious, the property owner can file an action to remove the fraudulent lien or deed through an ex parte (one-sided) motion.
The property owner may file a motion for judicial review of documentation purporting to create a lien or claim with the court in the county where the property sits. Instructions for filing the motion are found in Texas Government Code Section 51.093.
Filing a Motion for Removal of Fraudulent Lien
The property owner must be the purported debtor or owner of the real property or of an interest in the property. They must have reason to believe the document that attempts to create a lien or claim against the land is fraudulent.
The motion should be verified by an affidavit (written statement confirmed by oath or affirmation), a completed form for ordinary certificate of acknowledgment described in Texas Civil Practice and Remedies Code Section 121.007.
The property owner must attach the fraudulent instrument to the motion and allege that the instrument is fraudulent and should not be accorded the status of a lien. The property owner must acknowledge that they may be subject to sanctions if the court determines that their motion frivolous.
Bringing a Civil Action
If the property owner has suffered financial damages due to the fraudulent instrument, they can file a civil lawsuit for fraud against the party that recorded the fraudulent instrument. According to Texas Civil Practice and Remedies Code Section 16.004, the statute of limitations to recover damages for fraud is four years.
Filing Criminal Charges
A property owner who has been the victim of a fraud should talk to a prosecutor about filing criminal charges against the perpetrator. The statute of limitations for the state to file an action against an offender for fraud is seven years. If the state convicts the offender of the crime of fraud, the property owner can introduce the conviction as proof in a civil suit for damages.
The severity of a criminal offense for fraud depends on the value of the property. Fraud will be a third degree felony if the value of the property was $30,000 or more, but less than $150,000.
It will be a second degree felony if the value of the property was $150,000 or more, but less than $300,000. It will be a first degree felony if the value of the property was $300,000 or more.
Financial Abuse of the Elderly
If the offender attempts to defraud elderly property owners 65 or older, the state can charge the perpetrator with financial abuse of an elderly individual. This crime carries enhanced penalties. A fraud charged under Texas Penal Code Section 32.55 is a third degree felony if the value of the property is $2,500 or more, but less than $30,000.
The fraud is a second degree felony if the value of the property is $30,000 or more, but less than $150,000. The fraud is a first degree felony if the value of the property is $150,000 or more.
Penalties for a third degree felony include two to 10 years' incarceration and a fine up to $10,000. Penalties for a second degree felony include two to 20 years' incarceration and a fine up to $10,000. Penalties for a first degree felony include five years to life and a fine up to $10,000.
Removal From Deed Following Divorce
A person can remove an ex spouse or former spouse from a deed in Texas through a deed transfer. The former spouse must have knowledge and provide express consent for the removal. There is not an automatic removal of a former spouse upon a divorce.
What Is a Partition Action?
A court effects a partition action when it orders parties to equitably divide a piece of property. If two or more co-owners do not agree on what to do with a property, a joint owner or a claimant of an interest in real property, such as a creditor, can file a lawsuit to force the sale of the property.
In so doing, the court can compel a partition of the property or interest. Ultimately, a partition action will remove the current owners’ names from the deed. Language regarding a partition action can be found at Texas Property Code Section 23.001 and Texas Rules of Civil Procedure 756-771.
Removal of a Name From a Mortgage
Getting someone’s name removed from a mortgage requires a different set of actions than removing a person’s name from a deed. A mortgage involves a written contract.
Ensuring that a former spouse or former co-owner is no longer responsible for the mortgage means rewriting or altering the contract with the mortgage lender. Entering into a new contract may mean that the original terms of the contract will be changed.
After a divorce, a person who cosigned for the mortgage will not automatically be removed from the mortgage contract and cease to be liable for the debt.
Solutions for removing a name from a mortgage include:
- Finding a new person to assume the former spouse or co-owner’s portion of the debt. This requires rewriting the mortgage contract and having the new person sign the document.
- Selling the property.
- Having the person who wants to be removed from the mortgage file for Chapter 7 bankruptcy.
The court’s discharge of the person’s debts in bankruptcy means they are no longer liable for the mortgage. The other person on the mortgage contract remains liable for the debt unless the parties were married and filed jointly for bankruptcy. Then both their names will be removed from the mortgage contract.
- Texas Property Code: Title 3 Public Records, Chapter 13 Effect of Recording
- Dallas County, Texas: Recording Filing Fees & Payment Information
- Texas Property Code: Title 4 Actions and Remedies, Chapter 23 Partition
- Texas Courts: Texas Rules of Civil Procedure
- Texas Property Code: Title 2, Conveyances, Chapter 5, Conveyances
- Harris County Clerk's Office, Texas: Real Property
- Texas Government Code: Title 2 Judicial Branch, Chapter 51 Clerks
- Texas Civil Practice and Remedies Code: Chapter 121 Acknowledgments and Proofs of Written Instruments
- Texas Civil Practice and Remedies Code: Title 2 Trial, judgment and Appeal, Chapter 16 Limitations
- Texas Penal Code: Title 7 Offenses Against Property, Chapter 32 Fraud
- Texas Penal Code: Title 3, Punishments, Chapter 12, Punishments
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.