“Which deed do I use?” The history of land conveyancing is long and sometimes complicated, but the legal instrument used in Georgia to convey property is usually called a “deed.” A deed is a legal document conveying property from one party to another. There are specific statutory requirements for a deed to be both valid and recordable in the State of Georgia. For the purposes of this article, the term “deed” will refer to the instrument used to convey property from one party to another. The “grantor” identified in the deed is the party who is conveying the identified property to the “grantee.”
For most property transactions, the three types of deeds are (1) General Warranty Deed, (2) Limited Warranty Deed (often called a Special Warranty Deed in other states), and (3) Quitclaim Deed. Depending on the particular circumstances, the conveyance may also be (or may be required by statute to be) by Voluntary Deed, Testamentary Deed, or Administrator’s Deed. This article will focus on the three most common deed forms, the General Warranty Deed, Limited Warranty Deed, and Quitclaim Deed. It is important to consider for each of these deeds (i) what property is conveyed, (ii) what is not conveyed, and (iii) what warranty of title is given to the grantee by each type of deed.
What is conveyed:
There are no required words of conveyance in Georgia, although terms such as bargain, sell, grant, convey, demise, quitclaim and release are often used is the granting clause of a deed. Although there are no legal requirements for the description of property to be conveyed, a deed must identify the property with sufficient particularity and provide a “key” to a description of land. As with any other agreements, the more specificity the better. Only that land which is identified in the deed may be conveyed to the grantee.
Many modern deeds provide reference to an attachment or exhibit to the deed with a legal description of the land, often taken from a survey. Appurtenances to land, such as an easement for ingress and egress, will pass automatically with the land, because they are incident to the grant of ownership from the grantor. Buildings and improvements upon the identified land, unless expressly excepted, are also conveyed with the land.
What is not conveyed:
A deed may contain exceptions, reservations and restrictions that limit what is conveyed to a grantee. Grantors must be careful in reserving a portion of the land not to inadvertently create a life estate where a fee simple reservation was intended. The law generally does not favor restrictions on the free alienability of property, but does allow a grantor to place some restrictions on the land through the deed. A purchaser should always conduct proper due diligence to determine if there is any limitation in the chain of title as to what property is conveyed and how it may be used.
General warranty deeds, limited warranty deeds, and quitclaim deeds differ primarily in the warranty of title that each provides, and therefore, what claims a grantee may bring for a defect in title.
- A general warranty deed grants the broadest rights to a grantee, as the grantor warrants against all defects in title, regardless of whether such defects arose before or after the grantor took title to the property.
- A limited warranty deed limits such warranty to only those matters that arise during the time that grantor held title, and does not warrant against defects arising before the grantor received title. Under a limited warranty deed, the grantor is only taking responsibility for the grantor’s own acts or omissions (if grantor allowed an encumbrance or defect to be established) affecting title, as opposed to the acts of others before the grantor took title. A limited warranty deed must limit the warranty to “claims of persons holding by, through, or under the grantor” or use words of similar import.
- Finally, a quitclaim deed does not provide any warranty as to the state of title, and conveys only the interest, if any, the grantor has in the described property. A quitclaim deed is effective to convey the grantor’s interest in property in the same way as a limited or general warranty deed, but the grantee does not receive any warranty of title from the grantor. However, if the grantor had received any warranty of title when it took title, then such a warranty would also be conveyed to the grantee, who may bring suit based upon prior warranties.
In conclusion, the type of deed used in a real property transaction is critically important and may have a future impact on the grantee’s use or later sale of the property.
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