Drafting a valid deed or conveyance of land in Texas, in its most basic form, is subject to a number of statutory and common-law requirements, many of which date back hundreds of years to their basis in England during the Dark Ages. These broadly relate to the following:
These are only the basics of a rudimentary deed in Texas, and do not address more complex arrangements or potential liabilities, but should provide some insight into the law governing transfers of land. Austin real estate attorney Farren Smith has experience with a variety of land transfers and offers a case evaluation for deeds and other real estate matters.
The Form of the Deed
In Texas, a deed must be in writing and signed by the person transferring the land, otherwise known as the “grantor.” The person the grantor is transferring the land to is known as the “grantee.” No particular words must be used in order to constitute a legally effective transfer, but whatever words are used must show intent to sell or bargain for the property at the time the words are written. Put differently, the language used must show a present intent to transfer the property. The grantor must use words that indicate unambiguously that the grantor intends to transfer the land–for instance, that the grantor “gives” or “conveys” the land. Saying that it is your wish to give the land to someone, or that you want to give the land to someone in the future by itself is inadequate. The deed must also sufficiently identify the grantor and the grantee and describe the land with reasonable clarity.
Identifying the Parties to the Transfer
In order to be binding between the grantor and the grantee, the grantor must sign the deed. The name of the grantor does not necessarily need to be present in the body text of the deed.
The deed must also identify the recipient of the land, the grantee, with reasonable certainty. The actual name of the grantee does not necessarily have to be used if the grantee can nevertheless be identified with certainty. For example, a deed to “my sister” is sufficient if I have only one sister; it is invalid if I have more than one sister and there is no other evidence clarifying which sister I meant to deed the land to. Additionally, land of course cannot be given to a deceased person or a corporation no longer in existence. However, it can be transferred to that deceased person’s heirs–for instance, a grant of land “to X or his heirs” is a valid transfer to X’s heirs even if X has passed away at the time the grant of land was made. A grantor can, however, deliver a deed with a blank where the grantee’s name is to be written in later to a second person, and that second person will have the irrevocable authority to fill in the name of the grantee, thereby creating a valid deed.
Describing the Land in the Deed
All deeds in Texas must contain a valid description of the land to be conveyed. The basic standard for deciding whether a description is valid is whether a person familiar with the locale would be able to distinguish, with certainty, the parcel or parcels of land the deed is describing from other land in the same area. This description can be contained within the deed itself, or the deed can reference another writing in existence at the time the deed is drafted, so long as the method of identification or the information given satisfies this standard.
Executing or Signing the Deed
As indicated above, in order for the deed to be binding between the parties, the grantor must sign the deed. However, in order to be recorded in the county deed records in Texas, the grantor’s signature must be acknowledged, for example through a certification by a notary public. There are other methods of validating the grantor’s signature for the purposes of recording the deed in the county records as well, but the most common and accessible method by far is through a notarization.
It is important to record the deed in the county deed records in order to give the public at large notice of the current identity of the person who holds title to the land. Once a deed is recorded in the county records, the law deems or treats everyone as if they have notice of the deed, because it is available for the public to search. If a deed is not recorded, the grantor could sell the land to a second grantee, who would get to keep the land if they were the first to record their deed and did not have actual knowledge of the deed to the first grantee. This second grantee is known as a “bona fide purchaser” in the law because he or she gives value for the land in good faith, and without notice of the previous deed. The deed records for Travis County and Williamson County are available online.
Unless the deed is recorded electronically, it must also contain an original signature of the grantor, and not a copy. The grantee’s signature is not required on the deed.
Delivery and Acceptance of the Deed by the Grantee
A deed is effective between the grantor and the grantee immediately upon delivery by the grantor and acceptance by the grantee. “Delivery” of a deed only requires that a grantor release its control over the deed to the grantee while simultaneously intending that the grantee receive the deed. This does not require that the grantor actually physically hand the deed over to the grantee. For example, grantor can also give the deed to a third person and instruct them to deliver the deed to the grantee once certain events or actions occur. This is called placing the deed in “escrow.” If the grantee complies with the conditions of the escrow agreement, he or she or it is entitled to the deed. A court will also generally make the assumption (called a “presumption” in the law), that a valid delivery occurred if the grantee has possession of a properly executed deed, with certain exceptions. Even though recording the deed is not required to make the transfer valid between the parties, as described above the grantee will want to record the deed as soon as possible after receiving delivery in order to protect their interest in the land from bona fide purchasers.
Even though the grantor may make a valid delivery, in order to be effective a grantee must accept the deed in its entirety. That is, the grantee must accept all provisions in the deed at once and cannot pick and choose which provisions it will accept. Acceptance can be either express or implied from the grantee’s words or conduct. However, acceptance can be conditioned on certain events outside of or external to the deed itself.
Contact our offices to discuss your deed with an experienced real estate attorney.
- 17-254 Dorsaneo, Texas Litigation Guide