9.18-23

Habendum Clause

'Habendum et tenendum' is the original Latin wording for "to have and to hold." In modern deeds, the clause that specifies the interest in the real estate conveyed is simply referred to as the habendum clause. If the habendum clause contains the wording "forever", the estate conveyed is fee simple. If the habendum clause contains the wording for "the life of the grantee", the kind of estate conveyed is a life estate.

TYPES OF STATUTORY DEEDS

A statutory deed is a concise form which offers the same legal protections as a more detailed form that spells out all the rules and restrictions concerning the use of a piece of property. The four types of statutory deeds are: 1. General warranty deed 2. Special warranty deed 3. Bargain and Sale deed 4. Quitclaim deed When selling a condominium, it is important to be aware of the fact that the deed must be recorded in the public record together with the notarized, original approval of the condominium or homeowner association.

The essential parts of a deed are:

A. Names of grantor and grantee B. Consideration C. Words of conveyance (granting clause) D. Interest or estate being conveyed (habendum clause) E. Deed restrictions F. Exceptions and reservations G. Appurtenances H. Legal description of property I. Signature of grantor J. Delivery and Acceptance (Acknowledgement clause)

Appurtenances

Appurtenances are the rights, privileges, and or properties that are considered incident to the principal property for purposes such as passage of title, conveyance, or inheritance. If a lot of land is half a mile from the beach and the original division of the land gave the owner the right to access the beach through the lots occupying that half mile, that right of way is an appurtenance which should be specified in the deed.

Consideration

Consideration is anything of value in exchange for which the deed is granted. It is usually formalized in terms of a dollar amount, but it may be personal or real property, or even an intangible asset.

Covenant of seisin (or seizin):

Guarantees: Grantor guarantees he owns the property and the right to dispose of it. If the property is mortgaged, that is not a breach of the covenant.

Covenant of quiet enjoyment

Guarantees: peaceful enjoyment of the property, without fear of future claims on the title.

Covenant of warranty forever

Guarantees: that the grantee shall have title and possession to the property

Covenant of further assurance

Guarantees: that the grantor will procure and deliver to the grantee any subsequent documents necessary to make good the grantee's title.

Covenant against encumbrances

Guarantees: there are no encumbrances other than those stated in the deed.

Acknowledgement

In the acknowledgement, the grantor formally declares that she was not coerced or obligated to sell his/her property or sign the deed. The acknowledgement must be signed by two witnesses, or, if notarized, by one witness, in addition to the notary. At the same time, the deed must be accepted by the grantee to transfer the interest in the property. The grantee must be aware of the fact that a specific parcel of property is transferred to his control.

Voluntary Delivery and Acceptance

In the past, powerful landowners often used intimidation to force small farmers to sell their property for very little money. In order to avoid this situation, deeds contain a clause called the acknowledgement. This section makes it clear that the transfer of title is voluntary.

Exceptions and Reservations

In transferring an interest in real property, the grantor may reserve some specific rights or exclusions. The rights to use a specific balcony in a building or to access the water (e.g. a beach or lake shore) in the sale of a lot of land are good examples. The exceptions and reservations must be included in the deed.

ELEMENTS 1-9

SEE PICTURES.

Special Purpose Deeds

Special purpose deeds have evolved to cover situations in which an owner cannot or will not sign a deed. For example, the property owner may have died or been deemed incompetent making it impossible for him or her to sign the deed. The major types of special purpose deeds include: Special Purpose Deed: Guardian's Deed Property Owner: Minor Process: Guardian transfers property on behalf of a minor. The guardian is the minor's fiduciary, but he or she must be authorized by a court to sell or transfer the minor's property. Special Purpose Deed: Committee's Deed Property Owner: Incompetent An owner, who has either been declared Process: incompetent by a court or committed to an institution, is represented by a committee appointed by a court to handle his or her affairs. The deed must be signed by all committee members. Special Purpose Deed: Personal Representative's Deed Property Owner: Deceased Process: Formalizes and records the transfer of title on conveyance of a deceased person's property. The personal representative is appointed either by the will or a court to handle the deceased's property. In the case of a foreclosure sale, the owner does not sign the deed when the property is conveyed. Instead, a certificate of title is prepared by the foreclosing lender's attorney. It shows ownership and outstanding liens. All risks that may arise as a result of defects in the title fall to the buyer.

3. Bargain and Sale Deed

The bargain and sale deed is also mostly used in business, but is not that common. This kind of deed does not provide any defense from potential future attacks against the title. A bargain and sale deed consists of a granting clause, habendum clause, and covenant of seisin. It conveys whatever title the grantor has, without further promises or guarantees.

DEEDS

The deed is the legal instrument that transfers the interest in the property from the old owner (seller) to the new owner (buyer). The parties to the transfer of title are known as the grantor (the seller who owns the property and is giving the title) and the grantee (the buyer who will own the property and is receiving the title; literally the person who the title is granted to). To be valid, the deed must be signed by the grantor and witnessed by two people. The grantor must be of sound mind and legal age. A deed is a document that specifies the legal description of the property, the names of the old owner (grantor), and the names of the buyer (grantee). The deed also specifies the date of execution, the negotiation that took place between buyer and seller, and the restrictions that come with the ownership of the new property.

Deed Restrictions

The deed may convey either private or public restrictions. For example, if a deed comes with a recorded 100-year lease, the lease is a private restriction on the use of a parcel of land. The new owner, or grantee, can acquire the property but he must honor the lease or buy the tenant out in some way.

1. General Warranty Deed

The general warranty deed is a kind of statutory deed that gives the grantee the most protection. The grantor agrees to protect the grantee against any claims to the property's title. The general warranty deed is the most widely used instrument to transfer residential real estate in Florida. It contains a series of covenants and warranties that minimize the possibility of future claims against the title: Types of Covenant: Guarantees Covenant of seisin (or seizin) Covenant against encumbrances Covenant of quiet enjoyment Covenant of further assurance Covenant of warranty forever

Words of Conveyance

The granting clause is the part of the deed that contains wording such as 'sells' or 'grants' in order to indicate that the property is being conveyed. This clause is typically found in the premises section which names the parties, the date of execution, the consideration, and the legal description of the property.

Legal Description of the Property

The legal description of the property must be included in a deed.It is usually in the premises or introduction. The premises also typically contain the names of the grantor and grantee, the granting clause, the consideration that was given, and the date of execution of the deed.

2. Special Warranty Deed

The special warranty deed does not offer as much protection to the buyer as the general warranty deed. The grantor in a special warranty deed warrants or guarantees the title against defects arising after the grantor acquired the property and not against defects arising before that time. The grantor warrants the title ONLY against his potential future acts or the ones of his successors and agents or assignees. The grantor does not promise to provide any further assistance to defend the title.This deed is mostly used for business transactions, such as developers selling their own properties.

Requirements for a Valid Deed

There are at least 9 elements in a valid deed: 1. The deed must be in writing. 2. The name of grantor and grantee must appear on the deed. 3. The grantor must have legal capacity. 4. The property must be conveyed in exchange for some consideration. 5. A granting clause must be present 6. A habendum clause must be present. 7. The legal description must be used to identify the property. 8. The grantor must sign the deed; it must be witnessed by two persons. 9. The deed must be delivered and accepted by the buyer.

4. Quitclaim Deed

With a quitclaim deed, the interest that the grantor holds in the property is conveyed to the grantee as is, with no further warranties. The quitclaim deed does not state the nature of the rights conveyed or warrant ownership. Literally, the seller only QUITS any CLAIM he/she may have on the deed to that property and passes it on to the buyer with all the old potential claims of other people. Quitclaim deeds are typically used to clear up a technical defect in the chain of title or to release lien claims against the property. Examples of such deeds are correction deeds, and deeds of release. For example, suppose that a title search reveals that a property was once held by a partnership that later abandoned it. To make the title marketable, the current owner must obtain a quitclaim deed from all of the partners in the partnership. Quitclaim deeds can also be used for transactions between family members.