I. A Brief Overview of Real Estate Transactions
Thinking of purchasing, selling, or gifting a piece of real estate property in Florida without hiring an attorney*? Think again! The type of deed you obtain or prepare has some different advantages and drawbacks you should be aware of. This article explains the different kinds of deeds that are used to transfer property to a new owner during a real estate transaction and the ownership rights that come with each deed.
Back in the 1500’s** claiming real estate ownership was very hostile. While real estate transactions have progressively improved over the past few centuries, there are times where heated disputes still arise during the process. In many instances, these disagreements tend to come up when another person claims to have an interest in the property you are trying to purchase, sell or give away to a friend, loved one, business, or charitable organization. If you understand the type of deed you’re giving or receiving, then you will know in advance the risks and benefits that come with each deed.
Familiarizing yourself with the following real estate terms and definitions will help you understand the different types of deeds and the ownership rights transferred during a real estate transaction:
1. Chain of Title – history of ownership
2. Clear Title – the property is free and clear of encumbrances, liens, and levies from creditors and other parties
* Real estate attorney Kimberly Soto’s experience includes representing buyers and sellers in residential real estate transactions, representing investors in the purchase and sale of hotels, apartments, condominiums, single-family homes, shopping centers, subdivision and mobile-home developments. It also includes drafting purchase and sale agreements as well as reviewing and identifying issues contained in contracts, title, and loan underwriting. For more information, review the "Real Estate Must Know" playlist contained on The Soto Law Office, P.A. YouTube Channel.
** For a history of land ownership in Florida, review “European Exploration and Colonization.”
3. Convey –to transfer or pass on to another
4. Covenant – a promise in a written real property contract or deed (e.g., a covenant of warranty guarantees the title to the property is free of any claims against it)
5. Deed – a legal document used to convey interest in real estate property from one person or entity to another
6. Encumbrance – any claim, limitation or liability upon a property that restricts an owner from transferring clear title
7. Interest in real estate – a person's or entity's entitlements in a property
8. Grantee – the person (usually Buyer) taking the title (ownership) or interest in a property
9. Grantor – the person (usually Seller) conveying an interest in a property to another person
10. Real property (also known as real estate) – a piece of land along with anything growing, affixed to, or built on it
11. Recording - submitting documents to the appropriate County Recorders or Recorder of Deeds office for recordation in the public records
12. Warranties – a written statement where a seller guarantees to a buyer his or her right to transfer ownership and ensures no one else has an entitlement to the property
II. Deed Types and Their Respective Benefits & Drawbacks
A Warranty Deed provides the Grantor an opportunity to warrant to the Grantee that there are no issues with the real property. For example, the Grantor may warrant that there are no title defects with the real estate, or the Grantor may warrant that the Grantor has the right to convey the real property to the Grantee.
A Special Warranty Deed provides the Grantor an opportunity to warrant to the Grantee that there are no issues with the real property since the Grantor obtained the title for the real estate.
A Quit Claim Deed is different from a Warranty Deed and a Special Warranty Deed because in this Deed, the Grantor makes no assurances or promises regarding the real property and the Grantee will obtain title to the property as is.
A Life Estate Deed is a deed that will split the ownership between the present Grantor and the future owners. If you execute this Deed, the Grantor may hold the real property as a life tenant during the Grantor’s lifetime, and the future owners will inherit the real estate as remainder beneficiaries after the Grantor dies.
A Lady Bird Deed is a deed that permits the Grantor to retain specific rights over the real estate. For example, after a Grantor conveys real property to a Grantee, years later the Grantor may change his/her mind and want to change the Grantee. By executing this deed, the Grantor reserves his/her rights in the deed to change the Grantee without having the Grantee execute any documentation.
III. Importance of a Properly Executed Deed
After you decide which Deed is appropriate for you, it is crucial to execute the Deed according to the formalities of the Florida Statutes.
Under to §689.01 of the Florida Statutes, a Deed must be in writing and signed by the Grantor before two subscribing witnesses and a Notary Public. The Notary Public’s notary block, stamp, and signature must also appear on the Deed. Therefore, it is good practice to have the Grantor execute the Deed in the presence of a Notary Public and have the Notary Public acknowledge the Grantor’s signature and affix his/her notary stamp on the Deed.
Likewise, it is in a Grantee’s best interest to submit the fully executed and notarized Deed to the appropriate recording office in the county where the property is located.
IV. Importance of Hiring a Realtor® and Attorney
Navigating through a real estate transaction may be a daunting task, but if you have a Realtor® and attorney on your side, those individuals will make it easier to navigate through each step of the process.
It is prudent to hire a Realtor® because they have the expertise and knowledge to help you accurately complete the vast amount of paperwork required to close on the sale or purchase of real property. (To distinguish the difference between a real estate agent and Realtor® review “What Exactly Is a REALTOR®?”).
It is also important to hire an attorney from the onset of a real estate transaction because he or she can protect you in numerous ways. An experienced real estate attorney would be able to immediately spot and address legal issues as they arise. Part of a real estate attorney’s services would include performing a title search to determine if there are any liens or encumbrances on the property. A real estate attorney can, among other things, also verify whether condominium or homeowners association governing documents or the local zoning department prohibits you from making any future improvements to your property.
Real estate attorney, Kimberly Soto, is available to discuss your real estate transaction. If you need assistance determining which deed is appropriate for your particular needs, call Ms. Soto at 321.972.2279 today! The Soto Law Office, P.A. is conveniently located in Altamonte Springs, Florida near I-4, and proudly serves Brevard, Lake, Orange, Osceola, Seminole, and Volusia Counties.
Florida Bar Disclaimer
The information contained in this article presents general information. It should not be used as legal advice. Before you act on any of the materials appearing in this article, seek legal counsel regarding your own unique situation. Using the material contained in this article does not create an attorney-client relationship between The Soto Law Office, P.A. or any of its lawyers and you.
Hiring a lawyer is an important decision. Do not rely on advertisements only; you should request information from an attorney about his or her qualifications and experience.