Anatomy of a Deed
In some cases, the ownership of real property—even property worth millions of dollars—is evidenced solely by what is printed on one side of a single sheet of paper. I am referring, of course, to a deed. While there is technically no minimum or maximum number of pages required for a deed, the law does require a few specific clauses and other accoutrements for a deed to, indeed, be a deed. So today, we examine the anatomy of a deed.
First, as is implied by the introduction, a deed must be in writing. In this digital age, electronic documents are usually sufficient to constitute a “writing,” but the prevailing practice is that deeds must still be inscribed on a tangible medium. That tangible medium does not necessarily have to be paper, however. In past centuries, deeds were inscribed in duplicate on sheepskin, which was then cut in a zig-zag pattern between the copies so that they could be matched up later for authentication. An example of this antiquated type of deed, known as an “indenture,” is hanging in the conference room of our law office. Technically, one could still inscribe a deed on sheepskin today without any negative legal ramifications—no pun intended.
Now, starting at the top of the written instrument, sheepskin or otherwise, a deed will usually have a heading. The heading may be just “deed,” or it may be more specific, such as “general warranty deed,” “special warranty deed,” “gift deed,” or “deed with vendor’s lien,” just to name a few. However, in Texas, a deed transferring property to or from an individual must contain a notice of confidentiality rights at the top of the first page, in more-or-less the following form:
NOTICE OF CONFIDENTIALITY RIGHTS: IF YOU ARE A NATURAL PERSON, YOU MAY REMOVE OR STRIKE ANY OR ALL OF THE FOLLOWING INFORMATION FROM ANY INSTRUMENT THAT TRANSFERS AN INTEREST IN REAL PROPERTY BEFORE IT IS FILED FOR RECORD IN THE PUBLIC RECORDS: YOUR SOCIAL SECURITY NUMBER OR YOUR DRIVER’S LICENSE NUMBER
Because this notice must be at the “top” of the first page, it usually precedes the heading.
Then, the deed will identify the grantor, the grantee, and the property. The identification of the grantor and grantee usually just states the parties’ full legal names. The identification of the property, however, may be accomplished in a variety of different ways. For a lengthier discussion on the various methods of describing property, please refer to an earlier article in our blog. Some deeds will also recite the consideration exchanged for the property, but to avoid disclosing the purchase price for all the world to see, deeds will usually state something like “ten dollars and other good and valuable consideration.”
Next come reservations, exceptions, and covenants, if there are any. Reservations are basically interests in the property that the grantor is keeping for themselves, such as an easement for ingress and egress across the property, allowing the grantor to access an adjoining tract. An exception, on the other hand, is something that is excluded from the conveyance but which is not necessarily being retained by the grantor. This could be a mineral interest previously granted to somebody else, or perhaps a reservation made by a previous grantor. Covenants are agreements which affect the grantee’s rights as to the property, such as what the property can and cannot be used for. You may live in or have driven through a neighborhood with signs stating that it is “a deed restricted community,” or something to that effect. These signs refer to the covenants within the deeds for property in the neighborhood, but such signs are not necessary for the covenants to be effective.
Next comes the habendum, which is perhaps the only part of a deed that actually sounds anatomical. The habendum is the operative part of the deed, i.e. the language that proclaims the conveyance. Given the other parts of the deed discussed so far, a simple habendum might read: “Grantor hereby grants, sells, and conveys the Property to Grantee, subject to the Reservations, Exceptions, and Covenants.” A typical habendum would be somewhat broader than this example, and would likely include a few additional words and phrases for specific legal effect, but every habendum has essentially the same general tone: “A hereby giveths to B.”
Finally, no deed is complete without the signature of the grantor, which should be dated and acknowledged before a notary public. Oddly, the signature of the grantee is usually not needed, and is therefore customarily omitted. However, the deed must nevertheless be “delivered” to the grantee. Delivery of a deed is something of a term of art, and does not necessarily mean that the deed is physically handed to the grantee. Rather, delivery is, as Shakespeare would say, “in the heart or in the head.” In other words, it is a manifestation of the intent of the parties.
We should note that not all of the anatomical features discussed above are absolutely necessary for a deed to be effective—some are best practices, some may be included or omitted on an “as needed” basis, some are only required for recording, and some are merely customary. Additionally, there are many other provisions that may be added to a deed for specific purposes.
So that’s it: the basic anatomy of a deed. Interestingly, deeds have not always been used to convey property. Well before the advent of the deed, or even the sheepskin indenture for that matter, property was conveyed by an elaborate ceremony, known as “feoffment with livery of seisin,” in which a clod of dirt or some other symbolic representation of the land was physically handed from the grantor to the grantee. According to lore, children witnessing the ceremony were sometimes beaten so that they would have better recollection of the event in case their testimony was later needed to settle a title dispute. Perhaps the scars from this archaic practice, both figurative and literal, are why we must still inscribe deeds on a tangible medium, even in this digital age.