Types of Deeds
The following section will provide you with brief definitions of some important terms you should understand regarding deed procedures.
The key is “warranty.” The Seller warrants that there are no defects which will affect the marketability of the Buyer’s title to the property, except for any items which are specifically stated in the Deed (examples of exceptions; easements, zoning ordinances, taxes not yet due and payable). Under the Ohio Revised Code, the words “with General Warranty Covenants” in the Deed are sufficient to make the Deed a Warranty Deed.
QUIT CLAIM DEED:
In this deed, the Seller makes no warranties as to the condition of the title. The Seller conveys to the purchaser only in the property whatever interest he may hold.
ESTATE BY THE ENTIRETIES:
The Estate by the Entireties is a form of ownership in which a husband and wife own property jointly, with rights of survivorship. As of April 4, 1985, this form of ownership was extinguished by statute, except for deeds filed prior to this date. The Estate By The Entireties gave limited protection against creditors. It also allowed the real estate, upon the death of one spouse, to pass automatically to the surviving spouse, outside of probate. The survivorship aspect can still be obtained by using the Survivorship Deed.
Like the Estate by the Entireties, when a property is transferred by a Survivorship Deed, it means that if one of the Buyers dies, the property will automatically transfer to the surviving owner, outside of probate. Unlike the Estate by the Entireties, the coowners of a parcel of property pursuant to a Survivorship Deed (the “survivorship tenants”) need not be husband and wife. The Survivorship Deed, however, does not offer the same protection against creditors the Estate by the Entireties formerly did. Rather, a creditor of a “survivorship tenant” may, in certain circumstances, cause the parcel of property to be partitioned, and the creditor may force a sale of the debtor’s interest in the land. A Survivorship Deed can be either a Warranty Deed or a Quit Claim Deed, depending upon its language.
EXECUTOR’S (OR ADMINISTRATOR’S) DEED:
These Deeds are used to convey property from a decedent’s estate. They are treated as though they were Quit Claim Deeds, with one exception: The Executor (or Administrator) warrants that he/she has lawful authority to transfer the real estate.
A Sheriffs Deed is used to convey property sold by foreclosure. Sheriff’s Deeds are treated as though they were Quit Claim Deeds.
EXECUTION OF DEEDS AND MORTGAGES
I. IF SIGNED IN OHIO:
Deeds must be signed by the grantor/seller, and mortgages must be signed by the mortgagor.
All signatures by a grantor or mortgagor (on a deed or mortgage, respectively) must be acknowledged in the presence of a notary, and must be notarized.
II. IF SIGNED IN U.S.A. BUT NOT IN OHIO:
Ohio will honor the law regarding the executions of deeds prevailing in the state where the Document is executed.
III. WHO MAY WITNESS (if applicable):
Witnesses must be disinterested and neither the Buyer nor the Seller may witness a Deed.
As a general rule of practice, spouses of the Buyer or Seller should not witness deeds either.
IV. WHO MAY BE A GRANTOR:
Must be 18 years or older.
A grantor of real property must be able to understand the act of granting an interest in land. If a person is an incompetent, a “land sale” guardianship procedure through Probate Court is necessary to convey real property.
The spouse of a grantor must always sign the deed to release his or her dower rights in the real property being conveyed. However, a divorce at any time after the document is signed will cure the failure of the spouse to sign.
V. DESCRIPTION OF PROPERTY:
In order to pass title from a seller to a buyer the deed can have just a general description of the real estate (for example, its address). A deed, however, cannot be recorded without a legal description that describes the metes and bounds of the real estate. Mortgages do not require a legal description of the real estate to be recorded, but it is often the practice.
VI. EFFECT OF RECORDING:
The reason documents are recorded is to put the world on notice that a transaction has taken place and that the buyer now holds title to the real estate. By not recording a deed, a subsequent buyer of the same real estate might be able to gain better title to the real estate than the first buyer. For example, if a Seller grants A a deed, but A fails to record it, and then Seller grants B a deed to the same piece of real estate, B will have better right to the real estate unless B has knowledge of the existence of the prior deed to A.
NOTE: THE INFORMATION CONTAINED IN THIS DOCUMENT IS FOR INFORMATIONAL PURPOSES ONLY AND IS NOT INTENDED TO TAKE THE PLACE OF A LEGAL OPINION. IF YOU HAVE ANY QUESTIONS ON THE INFORMATION CONTAINED IN THIS DOCUMENT, IT IS SUGGESTED THAT YOU CONTACT YOUR ATTORNEY FOR CLARIFICATION.