Real estate professionals are eagerly waiting to see if traditional Texas law as exemplified in Childress will be reinstated. To summarize: even though deeds may legitimately vary in form in Texas, the use of the traditional phrase "grant, sell, and convey" will always include the two statutory covenants contained in Section 5.
Accordingly, even in the case of a deed without warranties discussed below a careful drafter will take pains to expressly disclaim these two statutory covenants. An additional item: one occasionally hears about the implied covenant of habitability and the implied covenant of good and workmanlike construction.
Both of these covenants exist in Texas, but apply only in the case of newly-built residences. Centex Homes v. Buecher , 95 S. These should either be expressly mentioned or "none" should be inserted in that space. A note on terminology: "The primary distinction between a reservation and exception is that a reservation must always be in favor and [held back] for the benefit of the grantor; whereas an exception is a mere exclusion from the grant. Lankford , S. In other words, a reservation retains a certain interest in the grantor e.
Such language must be clear-an implied exception or reservation is not good enough. Griswold v. EOG Resources, Inc. Reservations and exceptions affect the total package of rights and interests a buyer is getting, so investors should consult an attorney and place close attention to the wording. Texas is a community property state and it is good practice but not required to state the marital status of the parties in the deed, since not doing so may raise questions later. For instance, a title company involved in a subsequent transaction may want to resolve any potential community property issues by asking that a prior owner in the chain execute a marital status affidavit or take other action to assure that all community property interests are properly tied up and accounted for before title insurance is issued.
So how does one do this for the grantor? Usually, by showing the grantor's name in the deed followed by for example one of the following phrases:. Choices for the grantee would include "an unmarried person" and "as grantee's sole and separate property. There is no requirement that a deed be recorded in the county clerk's real property records in order to be valid-only that it be executed and delivered to the grantee this may be done privately , at which time the transfer is fully effective between the grantor seller and the grantee buyer.
As between a grantor and grantee, deeds are valid even if the signature of the grantor is not acknowledged before a notary. Haile v. Holtzclaw , S. However, a deed must be properly acknowledged and notarized if it is to be recorded in the county clerk's real property records statutory recording requirements are found primarily in Property Code Chapters 12 and Texas is considered a "notice" state, meaning that recording gives notice to the world of the transfer and, of course, establishes priority in the event an unscrupulous seller conveys the property twice.
App-Houston [1st Dist.
All of this of course assumes that the deed is properly filed in the records of the county where it is located. Recording makes it easier for title companies to research and insure the chain of title. Title companies insist on recording for this reason. Recording also informs the taxing authorities where ad valorem tax bills should be sent. Executing and delivering a deed without immediately recording it can be a useful, inexpensive estate planning device-sometimes called "the deed in the drawer.
This is an entirely legal technique that has been used for ages. Note that there is now another option in this area-the transfer on death deed TODD , explained below. One more item relating to timing-the doctrine of "after-acquired title. A good reason for recording a deed is to preserve evidence of the transfer in the event the original document cannot be located. What happens when an unrecorded deed is lost or destroyed?
To enter into the dwelling unit in order to inspect the premises; make necessary or agreed repairs, decorations, alterations, or improvements; supply necessary or agreed services; or exhibit the dwelling unit to prospective or actual purchasers, mortgagees, tenants, workmen, or contractors. Landlord, or its contractors, shall perform the construction of the Landlord Improvements in accordance with the approved plans and all applicable laws, in a good and workmanlike manner, substantially free of defects and using new materials and equipment of good quality. Governing Law. The landlord shall have the burden of pleading and proving good faith and continued diligence for subsequent affidavits for delay. Lorino , Tex. The essence of the lease is that it transfers the right of occupancy from the landlord to the tenant.
Production of the original document is excused when it is established that the document has been lost or destroyed. Other evidence of the contents of a writing is admissible if the original has been lost or destroyed. Loss or destruction of the document is established by proof of search for this document and inability to find it. Gause , S. In fact, in Texas, it is customary to recite that the consideration paid is "ten dollars and other valuable consideration. While recording gives the public notice that a transaction has occurred, and therefore preserves the integrity of the chain of title, it is Texas tradition that it is not the public's business what the purchase price was.
Of course, the parties can always choose to show the actual price if they wish. A recordable deed must be signed and acknowledged before a notary by the seller. The buyer's signature is not usually required, but it may be advisable to include it if the deed contains specific agreements on the part of the buyer.
In order for these to be clear and enforceable in contract, they should be set out in the deed and the buyer should also execute the deed before a notary. See below for more detail on this approach. Can title to property be transferred if money is owed to a lender? Title and debt are different and divisible concepts. A "subject to" deed refers to acquiring title to property while expressly providing that the buyer assumes no liability for existing debts and liens.
It is a common device used by investors in order to buy property, fix it, and then flip it for a profit, all without promising to pay the existing debt or taking any liability for it. Grantee does not assume payment of this or any other indebtedness of Grantor.
A grantor may be willing to sell only on an "as is" basis. In such a case, "as is" refers to the condition of the property rather than the condition of the title. In other words, an "as is" deed may also be a warranty deed. The two are not mutually exclusive. Express and implied warranties of title may be and usually are present; however, there are no warranties made in an "as is" deed as to the state or condition of the land or any improvements upon it.
Does the presence of an "as is" clause negate any duty on the part of the seller to disclose defects?
The answer will almost always be no. Note that a grantor may wish to sell and convey property by means of a deed without warranties, which is the effective equivalent of an "as is" clause in the context of title. If this is the objective of the parties, a deed without warranties is almost always a better choice than a quitclaim. Some lawyers take the view that a deed should be a pure conveyance, uncluttered by clauses and agreements that do not bear directly upon the transfer of title or warranties made by the grantor.
The result of this approach is often to necessitate the preparation of one or more companion documents designed to contain additional items that have been agreed to between the parties.
In other words, two or more documents are required rather than one. This may have value when the parties' side agreements are confidential not to be reflected in the public record , but otherwise it may be simpler and more direct to include such agreements in a single comprehensive document.
Both grantor and grantee then sign and acknowledge the deed, making it a contract as well as a conveyance. An example would be the sale of a rental property from one investor to another. In this scenario it would helpful to include certain assignments in the deed-e. Such a clause might look like this:. In connection with the foregoing assignments, and to effectuate same, Grantor gives and grants to Grantee a special power of attorney to receive, endorse, and deposit to its own account any checks, proceeds, disbursements, or refunds which arise from the assignments and relate to the Property.
These assignments are made without representation, warranty, or recourse, and are made only to the extent that assignment of the foregoing items is lawful and consistent with existing contractual obligations and commitments of Grantor. The following are general categories of deed types that are likely to be encountered by a Texas real estate investor:. The term "warranty deed" refers to a deed that contains both express and implied warranties There is also a deed without warranties, discussed below.
A general warranty deed is the preferred form of deed for a buyer because it expressly warrants the entire chain of title all the way back to the sovereign, and it binds the grantor to defend against title defects, even if those defects were created prior to the grantor's period of ownership.
Here is a sample general warranty clause: "Grantor binds Grantor and Grantor's heirs, executors, administrators, successors and assigns to warrant and forever defend all and singular the Property to Grantee and Grantee's heirs, executors, administrators, successors, and assigns against every person whomsoever lawfully claiming or to claim the same or any part thereof, except as to the Reservations from Conveyance and the Exceptions to Conveyance and Warranty.
In a special warranty deed, title is warranted only from the grantor and no further back than that. The grantor's liability for title defects is therefore limited to his period of ownership up to and including conveyance to the grantee. Example: "Grantor binds Grantor and Grantor's heirs, executors, administrators, successors and assigns to warrant and forever defend all and singular the Property to Grantee and Grantee's heirs, executors, administrators, successors, and assigns against every person whomsoever lawfully claiming or to claim the same or any part thereof, when the claim is by, through, or under Grantor, but not otherwise, except as to the Reservations from Conveyance and the Exceptions to Conveyance and Warranty.
Commercial properties are typically conveyed by special warranty deed. Deeds into an investor's LLC may be either with general or special warranty, depending on the circumstances. There is usually no reason not to use a general warranty deed for this purpose if the property is residential. A deed without warranties is just that-a conveyance of real property without warranties, express or implied, as to any matters whatsoever. If one is the seller, then one cannot be too careful in assuring that all warranties are excluded.
This is a sample no-warranties conveyance clause: "Grantor, for the consideration and subject to the Reservations from Conveyance and Exceptions to Conveyance and Warranty, grants, sells, and conveys to Grantee the Property, together with all and singular the rights and appurtenances thereto in any way belonging, to have and to hold it to Grantee and Grantee's heirs, executors, administrators, successors, and assigns forever, without express or implied warranty. All covenants and warranties that might arise by common law as well as the statutory implied covenants contained in Section 5.
Why would anyone make or accept such a conveyance? The usual case is when the parties are unsure as to the extent of the grantor's interest, or if the grantor is willing to enter into the conveyance only on the condition that there is no liability for doing so. A deed without warranties may transfer the entire interest in a certain property, or it may not.
The parties assume the risk of this uncertainty. A deed without warranties is therefore considered a lower form of deed, but it nevertheless is effective in transferring title. As a form of transfer, it is certainly superior to a quitclaim, discussed next. Clients often call a lawyer's office and say they need a quitclaim deed. The lawyer's response should almost always be "No, you don't.
For one reason, a quitclaim is not a true deed at all since it is technically not a conveyance. It merely "quits" any "claim" by Grantor to any right, title, and interest that the grantor may have in a certain property, if any such interest exists. A local landlord-tenant attorney can advise you on how to legally enforce your right of quiet enjoyment.
If your troublesome neighbor rents from a different landlord, consider contacting that landlord.