A written instrument, which has been signed and delivered, by which one individual, the grantor, conveys title to real property to another individual, the grantee; a conveyance of land, tenements, or hereditaments, from one individual to another.
At Common Law, a deed was an instrument under seal that contained a Covenant or contract delivered by the individual who was to be bound by it to the party to whom it was granted. It is no longer required that such an instrument be sealed.
Transfer of Land
Land can only be transferred from one individual to another in the legally prescribed manner. Historically speaking, a written deed is the instrument used to convey ownership of real property.
A deed is labeled an instrument of conveyance. Under Spanish law, which was in effect at an early date in areas of the western United States, a written deed was not necessary to convey title to land. A verbal grant was sufficient to complete the transaction, provided that it was accompanied by a transfer of possession. Verbal grants of land in Texas have, therefore, been given recognition in U.S. courts.
A deed must describe with reasonable certainty the land that is being conveyed. The conveyance must include operative words of grant; however, technical terms do not need to be used. The grantor must be adequately identified by the conveyance, although it is not required that the grantor's name be specifically mentioned. State laws sometimes require that the deed indicate the residence of the grantor by town, city, county, and state.
In order for title to property to pass, a deed must specify the grantee with sufficient certainty to distinguish that individual from the rest of the world. Some statutes mandate that the deed list the grantee's residence by town, city, county, and state.
In order for a deed to be properly executed, certain acts must be performed to create a valid conveyance. Ordinarily, an essential element of execution is the signature of the grantor in the proper place. It is not necessary, however, that the grantee sign the deed in order for it to take effect as a conveyance. Generally state statutes require that the deed be signed in the presence of witnesses, attesting to the grantor's request.
Proper delivery of a deed from the grantor to the grantee is an essential element of its effectiveness. In addition, the grantor must make some statement or perform some act that implies his or her intention to transfer title. It is insufficient for a grantor to have the mere intention to transfer title, in the absence of further conduct that consummates the purpose.
There is no particular prescribed act, method, or ceremony required for delivery, and it is unnecessary that express words be employed or used in a specified manner. The deed need not be physically delivered to the grantee. It is sufficient to mail it to the grantee. Delivery of the deed by the attorney who has written the instrument for the grantor is also adequate. Unless otherwise provided by statute, a deed becomes effective upon its delivery date. The mere fact that the grantee has physical possession of the deed does not constitute delivery unless it was so intended by the grantor.
A deed must be accepted by the grantee in order for proper transfer of title to land to be accomplished. There are no fixed principles regarding what acts are sufficient to effect acceptance, since the issue is largely dependent upon the party's intent.
Acceptance of a deed need not be made by express words or in writing, absent a contrary statutory provision. A deed is ordinarily accepted when the grantee retains it or obtains a mortgage on the property at issue.
Legal policy mandates that a deed to real property be a matter of public record; therefore, subsequent to delivery and acceptance, a deed must be properly recorded.
The recording process begins when the deed is presented to the clerk's or recorder's office in the county where the property is located. The entire instrument is duplicated, ordinarily by photocopying. The copy is inserted into the current book of official records, which consists exclusively of copies of documents that are maintained and labeled in numerical order.
A properly recorded deed provides constructive notice of its contents, which means that all parties concerned are considered to have notice of the deed whether or not they actually saw it. A majority of jurisdictions place the burden upon home buyers to investigate any suspicious facts concerning the property of which they have actual or constructive notice. If, for example, there is a reference to the property for sale in the records to other deeds, the purchaser might be required to determine whether such instruments give rights in the property to other individuals.
A map referred to in a recorded deed that describes the property conveyed becomes part of the document for identification purposes.
The original copy of a deed is returned to the owner once it has been duplicated, recorded, and filed in the office of the recorder.
A records or clerk's office maintains a set of indexes, in addition to official records, in which information about each deed is recorded, so that upon a search for a document such information can be disclosed. A majority of states have a grantor-grantee index, a set of volumes containing a reference to all documents recorded alphabetically according to the grantor's name. The index lists the name of the grantor first, followed by the name of the grantee, then ordinarily a description of the instrument and sometimes of the property, and ultimately a reference to the volume and page number in the official record where the document has been copied. A grantee-grantor index has the identical information, but it is listed alphabetically according to the grantees' names. A tract index arranges all of the entries based upon the location of the property.
Indexes are frequently classified according to time periods. Therefore separate sets of indexes covering various periods of time may be available.
A significant problem can result in the event that a deed cannot be located through the indexes. This situation could result from a mistake in the recording process, such as indexing the deed under the wrong name. In a number of states, the courts will hold that such a deed was never recorded inasmuch as it was not indexed in such a manner as to provide notice to someone properly conducting a check on the title. In these jurisdictions, all grantees have the duty to return to the recorder's office after filing to protect themselves by checking on the indexing of their deeds. A purchaser who lives in a state with such laws should protect himself or herself either by consulting an attorney or returning to the recorder's office to ascertain that the deed is properly recorded and indexed. Other state statutes provide that a document is considered recorded when it is deposited in the proper office even if it is improperly recorded such that it cannot be located. In these states, there are no practical steps for subsequent buyers to take to circumvent this problem.
Types of Deeds
Three basic types of deeds commonly used are the grant deed, the quitclaim deed, and the warranty deed.
Grant Deed By use of a grant deed, the conveyor says, "I grant (convey, bargain, or sell) the property to you." In a number of jurisdictions a representation that the conveyor actually owns A sample grant deed.the property he or she is transferring is implied from such language.
Quitclaim Deed A quitclaim deed is intended to pass any title, interest, or claim that the grantor has in the property but makes no representation that such title is valid. In effect, this type of deed states that if the grantor actually owns the premises described or any interest therein, it is to be conveyed to the grantee. For this type of deed, some state statutes require a Warranty by the grantor, stating that neither the grantor nor anyone associated with him or her has encumbered the property, and that the grantor will defend the title against any defects that arise under and through him or her, but as to no others.
Warranty Deed In a warranty deed the grantor inserts covenants for title, promising that such title is good and clear. The customary covenants of title include warranty of seisin, Quiet Enjoyment, the right to convey, freedom from encumbrances, and a defense of the title as to all claims.
If a deed is to have any validity, it must be made voluntarily. The test of the capacity of an individual to execute a valid deed is based upon that person's ability to comprehend the consequences of his or her act. If a deed is not made through the conscious act of the grantor, it can be set aside in court. Relevant factors for the determination of whether a particular individual is capable of executing a valid deed are his or her age, and mental and physical condition. Extreme physical weakness resulting from old age or disease is a proper element for consideration in establishing capacity. Mental capacity, however, is the most important factor. If an individual is deemed to be mentally capable of disposing of his or her own property, the deed is ordinarily valid and would withstand objections made to it.
If Fraud is committed by either the grantor or grantee, a deed can be declared invalid. For example, a deed that is a forgery is completely ineffective.
The exercise of Undue Influence also ordinarily serves to invalidate a deed. The test of whether such influence has been exerted turns upon the issue of whether the grantor executed the deed voluntarily. Undue influence is wrongful and serves to confuse the judgment and to control the will of the grantor. Ordinary influence is insufficient to invalidate a deed. Deeds between parties who share a confidential relationship are frequently examined by the courts for undue influence. For example, the courts might place a deed under close scrutiny if the grantor's attorney or physician is named grantee. In addition, if the grantor is a drunkard or uses Drugs and Narcotics to excess, such would be circumstances for consideration when a court determines whether undue influence was exercised upon the grantor.
In a number of jurisdictions, an individual selling a house is required to disclose any material defect known to him or her but not to the purchaser. A failure to disclose gives the buyer the right to cancel the deed, sue for damages, and in some instances, recover for personal injuries incurred as a result of such defect.
Dasso, Jerome J., et al. 1995. Real Estate. 12th ed. Englewood Cliffs, N.J.: Prentice-Hall.
Karvel, George, and Maurice Unger. 1991. Real Estate: Principles and Practices. 9th ed. Cincinnati: South-Western.
Quitclaim Deed; Records; Recording of Land Titles.
DEED, conveyancing, contracts. A writing or instrument, under seal, containing some contract or agreement, and which has been delivered by the parties. Co. Litt. 171; 2 Bl. Com. 295; Shep. Touch. 50. This applies to all instruments in writing, under seal, whether they relate to the conveyance of lands, or to any other matter; a bond, a single bill, an agreement in writing, or any other contract whatever, when reduced to writing, which writing is sealed and delivered, is as much a deed as any conveyance of land. 2 Serg. & Rawle, 504; 1 Mood. Cr, Cas. 57; 5 Dana, 365; 1 How. Miss. R. 154; 1 McMullan, 373. Signing is not necessary at common law to make a deed. 2 Ev. Poth. 165; 11 Co. Rep. 278 6 S. & R. 311.
2. Deed, in its more confined sense, signifies a writing, by which lands, tenements, and hereditaments are conveyed, which writing is sealed and delivered by the parties.
3. The formal parts of a deed for the conveyance of land are, 1st. The premises, which contains all that precedes the habendum, namely, the date, the names and descriptions of the parties, the recitals, the consideration, the receipt of the same, the grant, the full description of the thing granted, and the exceptions, if any.
4.-2d. The habendum, which states that estate or interest is granted by the deed this is sometimes, done in the premises.
5.-3d. The tenendum. This was formerly used to express the tenure by which the estate granted was to be held; but now that all freehold tenures have been converted into socage, the tenendum is of no use and it is therefore joined to the habendum, under the formula to have and to hold.
6th. The redendum is that part of the deed by which the grantor reserves something to himself, out of the thing granted, as a rent, under the following formula, Yielding and paying.
7.-5th. The conditions upon which the grant is made. Vide Conditions.
8.-6th. The warranty, is that part by which the grantor warrants the title to the grantee. This is general when the warrant is against all persons, or special, when it is only against the grantor, his heirs, and those claiming under him. See Warranty.
9.-7th. The covenants, if any; these are inserted to oblige the parties or one of them, to do something beneficial to, or to abstain from something, which, if done, might be prejudicial to the other.
10.-8th. The conclusion, which mentions the execution and the date, either expressly, or by reference to the beginning.
11. The circumstances necessarily attendant upon a valid deed, are the following: 1. It must be written or printed on parchment or paper. Litt. 229, a; 2 Bl. Com. 297. 2. There must be sufficient parties. 3. A proper subject-matter which is the object of the grant. 4. A. sufficient consideration. 5. An agreement properly set forth. 6. It must be read, if desired. 7. It must be signed and sealed. 8. It must be delivered. 9. And attested by witnesses. 10. It should be properly acknowledged before a competent officer.
11. It ought to be recorded.
12. A deed may be avoided, 1. By alterations made in it subsequent to its execution, when made by the party himself, whether they be material or immaterial, and by any material alteration, made even by a stranger. Vide Erasure; Interlineation.
2. By the disagreement of those parties whose concurrence is necessary; for instance, in the case of a married woman by the disagreement of her husband. 3. By the judgment of a competent tribunal.
13. According to Sir William Blackstone, 2 Com. 313, deeds may be considered as (1), conveyances at common law, original and derivative. 1st. The original are, 1. Feoffment. 2. Gift. 3. Grant. 4. Lease. 5. Exchange; and 6. Partition. 2d. Derivative, which are 7. Release. 8. Confirmation. 9. Surrender. 10. Assignment 11. Defeasance. (2). Conveyances which derive their force by virtue of the statute of uses; namely, 12. Covenant to stand seised to uses. 13. Bargain and sale of lands. 14. Lease and release. 15. Deed to lead and declare uses. 16. Deed of revocation of uses.
14. The deed of, bargain and sale, is the most usual in the United States. Vide Bargain and Sale. Chancellor Kent is of opinion that a deed would be perfectly competent in any part of the United States, to convey the fee, if it was to the following effect: "I, A, B, in consideration of one dollar to me paid, by C D, do bargain and sell, (or in some of the states, grant) to C D, and his heirs, (in New York, Virginia, and some other states, the words, and his heirs may be omitted,) the lot of land, (describing it,) witness my hand and seal," &c. 4 Kent, Com. 452. Vide, generally, Bouv. Inst. Index, h.t.; Vin. Abr. Fait; Com. Dig. Fait; Shep. Touch. ch. 4; Dane's Ab. Index, h.t.; 4 Cruise's Dig. passim.
15. Title deeds are considered as part of the inheritance and pass to the heir as real estate. A tenant in tail is, therefore, entitled to them; and chancery will, enable him to get possession of them. 1 Bro. R. 206; 1 Ves. jr. 227;11 Ves. 277; 15 Ves. 173. See Hill. Ab. c. 25; 1 Bibb, R. 333: 3 Mass. 487; 5 Mass. 472.
16. The cancellation, surrender, or destruction of a deed of conveyance, will not divest the estate which has passed by force of it. 1 Johns. Ch. Rep. 417 2 Johns. Rep. 87. As to the effect of a redelivery of a deed, see 2 Bl. Com. 308 2 H. Bl. 263, 264.
Mortgage Assignment - How Real Estate Investors Profit
Mortgage assignment is a common practice among lenders. A mortgage deed, also called a deed of trust or trustee's deed or deed of trustee, gives a lender a security interest in the property mortgaged in return for money received. Lenders and mortgagors of deeds of trust often sell mortgages to third parties, like other lenders. If a trustee is assigning beneficial interest under a deed of trust, it should be recorded in writing. Mortgage assignment is a document that indicates that such an assignment of contract has happened. Once an assignment is recorded, a new lender stands in the shoes of the original lender.
Although a lender is not required to inform a borrower prior to mortgage assignment, s/he must send a notification after a mortgage sale has taken place informing the borrower how to make mortgage payments in the future. The borrower can negotiate mortgage terms with the new lender and seek mortgage modification.
A mortgage deed refers to a deed accompanied by a mortgaged loan note. Every mortgage deed involves two steps: a promissory note and a mortgage. A note has details like amount owed, term of loan, etc. and is proof of existence of a mortgage. The mortgage is the means through which a borrower pledges or mortgages property as security for money received. The note and mortgage are two sides of the same coin and are inseparable. A mortgage follows the note and thus assignment of mortgage note results in assignment of a mortgage. In other words, a mortgage cannot be assigned without transferring the note. Therefore, assignment of note and mortgage happen simultaneously.
Mortgage assignments are beneficial to both home sellers as well as buyers. For home sellers it can be an easy way to sell a home that has been on the market a long time. The benefit for home buyers is that they can buy a house without going through the process of qualifying for a bank loan and making a large down payment. There are many real estate companies offering attractive assignment programs that benefit sellers and buyers alike. Using the benefits of such a home mortgage assignment program will help you sell your home quickly or buy a home without dealing with bank formalities.
Once a mortgage has been transferred, it means that obligation of loan has transferred. In order to validly assign a mortgage, a mortgage assignment document should have the following details:
- description of the real estate so that there is clarity about the property
- the name of the original party as well as the third party
- contact information
- the date when the mortgage assignment became valid
Assignment of mortgage should be recorded before the government authority that deals with property ownership, property taxes, etc. If you are a borrower and you receive a notice that your mortgage has been transferred to another lender, you should get in touch with your lender and confirm it. You should also secure details of the person to whom the mortgage was sold to.
If you are a new lender and do not have a valid mortgage assignment document, you will be disadvantaged if you have to move for foreclosure. In the event mortgage payments stop, you may want to move the local court for foreclosure and take ownership of the property mortgaged. If there was no legal document created when you assign a mortgage, you will have no right to file for foreclosure. Therefore, it is important to document when you assign a mortgage. Click here to view our sample mortgage assignment form, also referred to as an assignment of mortgage form or mortgage assignment letter.
One drawback of mortgage assignment is that it all depends on a third party. For many, getting mortgages assigned is a kind of real estate investing practice. The third party to whom the mortgage is assigned to is a real estate investor who reaps the benefits of one of the party's desperateness. The investor third party is only concerned about reaping mortgage assignment profit from the mortgage assignment investing deal s/he has entered into and has no regard for the financial well being of the parties involved.
Mortgage Assignment FAQs
What is mortgage assignment?
Mortgage assignment, also called assignment of trustee's deed or assignment of deed of trustee, is the process of selling an existing mortgage to a third party. The borrower gets notice to make mortgage payments after the date of assignment of the mortgage deed to the new mortgagee. A mortgage assignment form satisfies lawful conveyance of the mortgage. An assignment of mortgage form also signifies that an assignment of contract has occurred and mortgage has been transferred.
Who can assign a mortgage?
A mortgage holder or a borrower can assign the mortgage to a third party. A lender can also assign a mortgage to another lender. In some cases, a homeowner can engage in assignment of mortgage, but the lender must give permission.
What are my benefits if I engage in HUD mortgage assignment program?
Homeowners can avoid foreclosure and can refinance their mortgage with the help of a mortgage assignment program offered by the U.S. Department of Housing & Urban development (HUD). In a real estate investing business, mortgage assignment program helps a real estate investor to sell his/her home really quickly.
What are the drawbacks of mortgage assignments?
There are a few drawbacks to assignment of a mortgage that you should be aware of. In case the buyer defaults on payments, you might have trouble collecting. Another disadvantage is that mortgage assignment depends on a third party-the new buyer, who is only concerned about getting mortgage assignment profit from a mortgage assignment deal.
Can you explain the process of mortgage assignment?
It is always advisable to utilize the services of a professional realtor or investor in the mortgage assignment investing business. Once you assign such a firm the task of mortgage assignment by signing a sales contract, they will do all the paperwork necessary for a mortgage assignment program. You will be required to submit additional documents related to the mortgage in order to assign the mortgage. The mortgage will then be advertised. Once a buyer is located, your realtor will require you to sign remaining paperwork and will prepare closing documents.
Documents required for a mortgage assignment are:
- loan details including loan number, loan type and terms of loan
- an authorization to discharge Loan Information
- purchase contract and addendum to contract identifying conditions of mortgage assignment
- seller's disclosure document
- mortgage assignment letter
- document assigning insurance contract
- an acknowledgement document by seller
- mortgage modifications, if any