Real property was once transferred through a ceremonial act known as “livery of seisin" in which the person transferring the land passed a twig or clod of turf from the land to the person taking delivery of the land.
A verbal and/or written contract may have accompanied the gesture, but only the "livery of seisin" legally transferred title to the property. Of course today, title to real property is conveyed by a deed. A property deed is a written and signed legal instrument that is used to transfer ownership of real property from a previous owner (the grantor) to a new owner (the grantee).
Deeds can be classified in numerous ways. Broadly, deeds are either official or private. Official deeds are executed pursuant to court or legal proceedings, such as trustees' deeds and tax deeds. Most property transactions, however, involve private deeds.
Deeds are also categorized based on the type of title warranty provided by the grantor. General warranty deeds provide the highest level of buyer protection, while quitclaim deeds typically provide the least. Here we take a look at quitclaim deeds in greater detail.
- A quitclaim deed is used for amending or changing title to real property in an efficient way.
- A property deed is a written and signed legal instrument that is used to transfer ownership of real property from a previous owner (the grantor) to a new owner (the grantee).
- Broadly, deeds are either official or private.
- General warranty deeds provide the highest level of buyer protection, while quitclaim deeds typically provide the least.
Five Things To Know About Quitclaim Deeds
What Is a Quitclaim Deed?
Quitclaim deeds are most often for transferring property between family members or to cure a defect on the title, such as a misspelling of a name. Although they are relatively common and most real estate agents have experience dealing with them, they are generally used in transactions where the parties know each other and are therefore more likely to accept the risks associated with the lack of buyer protection. They may also be used when a property transfers ownership without being sold, that is when no money is involved.
Because quitclaim deeds offer such limited buyer protection, it's important to understand exactly what you're getting when you buy property this way. Here are five things to know about these contracts.
The word "quitclaim" means to formally release, renounce, or relinquish a legal claim to property.
1. You're Buying the Least Amount of Protection of Any Deed
Also called a non-warranty deed, a quitclaim deed conveys whatever interest the grantor currently has in the property if any. The grantor only "remises, releases, and quitclaims" their interest in the property to the grantee. There are no warranties or promises regarding the quality of the title. The deed will clarify this by including language such as, "The Grantor makes no warranty, express or implied, as to title in the property herein described."
In situations where the grantor under a quitclaim deed has no interest in the property, the grantee acquires nothing by virtue of the quitclaim deed and acquires no right of warranty against the grantor.
2. Only Accept a Quitclaim Deed From Grantors You Know and Trust
Because quitclaim deeds make no warranty about the quality of the grantor's title, they are best for low-risk transactions between people who know each other and typically involve no exchange of money. Quitclaim deeds, therefore, are commonly used to transfer property within a family, such as from a parent to an adult child, between siblings, or when a property owner gets married and wants to add their spouse to the title.
Married couples who own a home together and later divorce also use quitclaim deeds. When one party acquires the home in a divorce settlement, the other may execute a quitclaim deed to eliminate their interest in the property (and to comply with the court's decision).
3. They Can Be Used to Clear a Title Defect
A quitclaim deed is often used to cure a defect (a "cloud on the title") in the recorded history of a real estate title. Title defects include items such as issues with wording (for example, on a document that does not comply with state standards), a missing signature (such as that of a spouse), or failure to properly record real estate documents. For example, if the name of a grantee is misspelled on a warranty deed placed in the public record, a quitclaim deed with the correct spelling can be executed to the grantee to perfect the title.
As another example, assume a title search reveals that the spouse of a past grantor may have an interest in the property because they did not properly execute a past deed in the chain of title. In this situation, the spouse of the past grantor can be asked to execute a quitclaim deed to the present owner, "quitclaiming" any interest they may have in the property.
4. They're As Effective As a Warranty Deed to Transfer Title, But Only If the Title Is Good
A quitclaim deed can convey title as effectively as a warranty deed if the grantor has a good title when the deed is delivered. It is the lack of any warranties, however, that makes a quitclaim deed less attractive from a grantee's perspective. If the title contains a defect, for example, the grantee has no legal recourse against the grantor under the deed. A quitclaim deed is often used if the grantor is not sure of the status of the title (whether it contains any defects) or if the grantor wants no liability under the title covenants.
Because quitclaim deeds expose the grantee to certain risks, they are most often used between family members and where there is no exchange of money.
5. A Quitclaim Deed Affects Ownership and the Name on the Deed, Not the Mortgage
Due to this, quitclaim deeds typically are not used in situations where the property involved has an outstanding mortgage. After all, it would be difficult for many grantors to pay off a mortgage without proceeds from the sale of the property.
In some instances, however, quitclaim deeds are used when the grantor has a mortgage. In this case, the grantor remains liable for the mortgage even after ownership has been transferred through the execution of a quitclaim deed. Quitclaim deeds transfer title but do not affect mortgages.
This situation can become worse if the mortgage contains a due-on-sale clause, a common provision stipulating that the entire loan becomes due as soon as the title is transferred (not just if the property is "sold" with an exchange of money, as the name "due-on-sale" would seem to imply).
If the grantor has quitclaimed the property with the belief that the grantee will make the mortgage payments, the grantor has no recourse if the grantee stops making payments or sells the property to another party. To mitigate potential financial and legal troubles, the grantee can assume the mortgage with the lender (with the lender's approval) or refinance the property and pay off the original loan. To add protection to the grantor, a legally enforceable agreement can be drawn to document the terms of payment.
When Is it Appropriate to Use a Quitclaim Deed?
Quitclaim deeds lack certain protections and promises found in other types of deed to real property. Because of this, they should only be used under certain circumstances. These include transferring real estate between close family members, for instance, from a parent to a child. It should also be used to amend a title to a property, such as adding a new spouse after marriage, or removing them after divorce.
What Is the Difference Between a Quitclaim Deed and a Warranty Deed?
A warranty deed provides guarantees of clear title to real property and that the current owner has the legal right to sell it or transfer it to another party. A quitclaim deed, in contrast, contains no guarantees about the quality of the title or owner. Because of this, a warranty deed is more trustworthy than a quitclaim deed.
How Can I Nullify a Quitclaim Deed?
The easiest way to overturn or cancel a quitclaim deed is if both parties to the transaction explicitly agree to do so. If somebody believes that a quitclaim deed was used to illegally transfer a property, it can be challenged in court. Such challenges may be subject to a statute of limitations of a few years - this will vary by state.
The Bottom Line
The transfer of an owner’s title is made by deed. Certain essential elements must be contained in the deed for it to be legally operative. Different deeds provide various levels of protection to the grantee, and the form of the deed determines the obligations of a grantor.
A quitclaim deed offers the least level of buyer protection and is generally used for title transfers between family members or to clear a defect on the title. If the property comes with what is known as a "special-purpose deed"—which could be a correction deed, a deed of gift, or a deed of release—it usually offers no more protection than a quitclaim deed. Be sure to consult a qualified real estate attorney: Deeds are important legal documents that affect ownership interests and rights.