Titles - Requirements for deed

Learning Outcomes

This article outlines the essential elements required for a deed to effectively transfer an interest in real property, including:

• Identifying and recalling the core Statute of Frauds formalities for deeds—writing, grantor signature, essential terms—and distinguishing them from mere recording requirements.
• Evaluating whether party designations, property descriptions, and words of grant are sufficiently definite on the MBE, and knowing when extrinsic evidence may cure ambiguities.
• Analyzing exam fact patterns testing present intent, to decide whether a purported conveyance is an enforceable deed, a mere promise to convey, or an ineffective testamentary substitute.
• Applying delivery doctrines—physical transfer, conditional delivery, escrow, relation back, and attempted revocation—to determine the precise moment legal title passes.
• Assessing acceptance issues, including the presumptions that arise with beneficial transfers, burdensome conveyances, and explicit rejection by the grantee.
• Distinguishing valid, void, and voidable deeds based on defects such as forgery, incapacity, fraud, or nonexistent grantees, and predicting how those defects affect subsequent bona fide purchasers under recording acts.
• Avoiding common exam traps that confuse deed-validity rules with marketable-title, contract, or recording-act questions, so you can quickly identify which body of law governs a given MBE problem.

MBE Syllabus

For the MBE, you are required to understand the formal requirements for creating and transferring title by deed, with a focus on the following syllabus points:

• Identify the essential terms required in a deed (parties, description, estate conveyed, words of grant).
• Recognize the necessity of a writing signed by the grantor under the Statute of Frauds.
• Assess the sufficiency and ambiguity of a property description and when extrinsic evidence is allowed.
• Analyze whether the legal requirement of delivery has been met, focusing on the grantor’s present intent.
• Understand the requirements and presumptions concerning acceptance by the grantee.
• Distinguish valid deeds from void or voidable deeds based on defects such as forgery, incapacity, fraud, or failure of formalities.
• Avoid confusing deed-validity rules with recording and recording-act issues (e.g., bona fide purchasers and priority rules).

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. To be valid, a deed transferring title to real property MUST contain which of the following?
   1. The purchase price paid by the grantee.
   2. The signature of both the grantor and the grantee.
   3. A description sufficient to identify the property.
   4. An acknowledgment before a notary public.
2. Grantor properly executes a deed conveying Blackacre to Grantee. Grantor hands the deed to Grantee, stating, "This deed is not effective until next Friday." On Thursday, Grantor seeks to reclaim the deed. Has effective delivery occurred?
   1. No, because Grantor expressed an intent that the deed not be immediately operative.
   2. No, because Grantor reclaimed the deed before the condition occurred.
   3. Yes, because physical transfer to the grantee constitutes delivery.
   4. Yes, because the oral condition was ineffective to limit the otherwise valid delivery.
3. Which of the following is generally NOT required for a deed to be valid between the parties?
   1. The grantor's signature.
   2. Consideration.
   3. Delivery by the grantor.
   4. An adequate description of the land.

Introduction

A deed is the central instrument used to transfer legal title to real property. Most MBE questions on deeds do not ask you to draft a deed; they test whether a given deed has actually transferred title. That turns on whether the deed satisfies formal requirements and whether it has been validly delivered and accepted.

Key Term: Deed
A written instrument that, when properly executed, delivered, and accepted, transfers legal title to real property from a grantor to a grantee.

In the typical timeline:

• A land sale contract is signed first. It creates contract rights and an equitable interest in the buyer, but it does not itself transfer legal title.
• Legal title passes later, at closing, when the seller (grantor) delivers a valid deed to the buyer (grantee) and the deed is accepted.

Under the merger doctrine, once the deed is delivered and accepted, the land sale contract is “swallowed up” by the deed.

Key Term: Merger Doctrine
The principle that, at closing, the land sale contract merges into the deed, so that any promises about title or the property must be found in the deed, not the contract, after delivery.

Because of this, the MBE often expects you to analyze title problems (like unmarketable title, or missing covenants) under deed rules rather than contract rules when closing has already occurred.

This article focuses on:

• What must be in the deed document (formal requirements),
• How delivery and acceptance work, and
• How defects (like forgery, incapacity, or ambiguous description) affect whether title has passed.

Understanding these points lets you decide who holds title at any given time and which earlier conveyances are legally effective.

Key Term: Grantor
The party who transfers title to real property by deed.

Key Term: Grantee
The party who receives title to real property by deed.

Essential Elements of a Valid Deed

For a deed to effectively transfer legal title, two broad requirements must be satisfied:

1. Lawful execution – the deed instrument itself must meet certain formalities; and
2. Delivery and acceptance – the grantor must intend a present transfer and the grantee must accept.

This section addresses lawful execution.

Writing Requirement (Statute of Frauds)

A deed conveys an interest in land and therefore falls under the Statute of Frauds.

Key Term: Statute of Frauds
A doctrine requiring certain transactions, including transfers of interests in real property, to be evidenced by a signed writing by the party to be charged to be enforceable.

For a deed:

• The writing need not be in a single formal document; a series of writings that can be read together may satisfy the requirement.
• The writing must contain the essential terms of the conveyance:
  • Identification of grantor and grantee,
  • Description of the property,
  • Words showing a present intent to convey, and
  • The grantor’s signature.

The writing requirement is about validity of the deed as a conveyance. Even if there is an enforceable land sale contract, title does not pass until a valid deed satisfying these requirements is delivered and accepted.

Grantor’s Signature

The Statute of Frauds requires the deed to be signed by the grantor. The grantee’s signature is rarely required for validity between the parties.

• Any mark intended as a signature (typed name, initials, or even an “X”) can suffice.
• An agent may sign for the grantor if the agent’s authority to do so is itself in writing (often tested under the “equal dignities rule”: authority to sign a deed must be in writing because the deed must be in writing).

A key exam point concerns forged signatures and unauthorized deeds:

Key Term: Void Deed
A deed that is a complete nullity—no title passes, even to a subsequent bona fide purchaser. Examples include deeds forged by an impostor or deeds to a nonexistent grantee.

Key Term: Voidable Deed
A deed that is valid and passes title unless and until it is set aside, but that can be avoided by the grantor (e.g., deeds obtained by fraud, duress, or executed by a minor or incapacitated person).

• A forged grantor signature makes the deed void. No one down the chain can get good title through a void deed, even a buyer who pays value without notice.
• By contrast, a deed signed by a grantor who lacked capacity, or obtained by fraud in the inducement, is generally voidable only. If the grantee conveys to a subsequent bona fide purchaser, the BFP usually keeps title.

Key Term: Bona Fide Purchaser (BFP)
A person who acquires an interest in property for value and without notice of prior claims or defects in title.

On the MBE, you must often decide whether a deed defect is void (forgery, deed to a dead or nonexistent grantee) or voidable (fraud, duress, incapacity) and then apply the consequences in later conveyances.

Identification of Parties

The deed must adequately identify the grantor and grantee.

• The grantor must exist and have capacity to convey.
• The grantee must be ascertainable at the time of delivery. The grantee can be described by name (“to Alice Smith”) or by an adequate description (“to my oldest living child”).

If the grantee does not exist when the deed is delivered (for example, “to XYZ Corporation,” when XYZ has not yet been formed), the deed is usually void.

However, the description can be general so long as identity is objectively determinable:

• “To the current pastor of St. Jude’s Church” is sufficient if a pastor exists when the deed is delivered and can be identified.
• Minor or spelling mistakes in names do not invalidate the deed if the parties are still reasonably identifiable from the instrument and surrounding circumstances.

Description of Property

A deed must contain a description of the property sufficient to identify the parcel being conveyed.

Key Term: Legal Description
A formal description of real property precise enough for a court to determine its location and boundaries, often using metes and bounds, government survey, or a recorded plat.

For exam purposes:

• A full legal description is common but not strictly required.
• The description is sufficient if it provides a “good lead”—enough information so that a competent surveyor or title examiner can locate the property using extrinsic evidence.

Examples of sufficient descriptions:

• “My house at 123 Oak Street” (if the grantor owns only one house at that address).
• “Lot 7, Block 2, Green Meadows Subdivision, as shown on the plat recorded in Book 10, Page 50.”

Descriptions that are too vague:

• “One acre of my 100‑acre farm” (no way to know which acre).
• “Some land in County X.”

Ambiguities are tested frequently:

Key Term: Latent Ambiguity
An ambiguity that is not apparent on the face of the deed but appears when applying the description to the ground (e.g., the grantor owns two different “123 Oak Street” parcels).

Key Term: Patent Ambiguity
An ambiguity apparent from the face of the deed itself (e.g., “to my house at either 123 Oak Street or 124 Oak Street”).

• Latent ambiguities can generally be clarified with parol (extrinsic) evidence. If the deed says “my house at 123 Oak Street,” and the grantor actually has two houses at that address, testimony and other evidence can be used to identify which was intended.
• Patent ambiguities, under the traditional rule generally applied on the MBE, cannot be cured by parol evidence. If the description on its face is hopelessly uncertain, the deed is void as to that property.

When multiple descriptions in one deed conflict, there is a traditional hierarchy:

1. Natural monuments (e.g., “the old oak tree by the river”) control over
2. Artificial monuments (e.g., stakes, roads), which control over
3. Courses and distances, which control over
4. Area or quantity (“ten acres, more or less”).

You are unlikely to be asked to apply that hierarchy in detail, but you may need to recognize that a monument reference can resolve minor measurement inconsistencies.

Words of Grant (Intent to Convey)

The deed must contain language indicating the grantor’s present intent to make the deed operative now.

Key Term: Words of Grant
Language in a deed that shows the grantor’s present intent to transfer an interest in the property, such as “grant,” “convey,” or “give.”

Key Term: Present Intent
The grantor’s intention that the conveyance take effect immediately (even if possession is postponed), rather than at some future time or only on death.

Examples of sufficient words of grant:

• “I hereby grant and convey Blackacre to B.”
• “O conveys and quitclaims Blackacre to A.”
• “I give my farm to my daughter, Carol.”

Language that suggests only a future transfer is not enough for a deed:

• “I will give you Blackacre next year” – this is a promise to convey in the future, not a present conveyance.
• “I intend to leave Blackacre to you in my will” – testamentary intent; not a deed.

A common exam trap is a writing that looks like a deed but clearly states it is only to be effective on the grantor’s death. If it lacks present intent and does not meet will formalities, it is invalid as both a deed and a will substitute.

Worked Example 1.1

Grantor signs a document titled “Deed” that states: “I will give Blackacre to my nephew, N, when I retire in five years.” Grantor hands the document to N and says, “Put this somewhere safe; it will be your deed when I retire.” Grantor retires three years later but changes his mind and conveys Blackacre to Buyer by a proper deed. N sues Buyer to quiet title. Who prevails?

Answer:
Buyer prevails. The writing did not contain words of present grant—only a promise to convey in the future (“will give” when Grantor retires). The document never operated as a deed. Grantor still held title when he later executed a valid deed to Buyer, so Buyer has good title.

Delivery

Even a perfectly drafted deed does not transfer title until it has been delivered and accepted. Delivery is about the grantor’s intent, not about formal ceremony or magic words.

Key Term: Delivery (Deeds)
The legal act signifying the grantor’s present intent to make a deed currently operative and to transfer title to the grantee. Physical transfer is strong evidence but not strictly required.

The Core Test: Present Intent to Transfer

Courts use an objective test: did the grantor, by words or actions, manifest an intent that the deed be presently effective?

• Physical transfer to the grantee creates a strong presumption of delivery.
• Grantor retaining possession of the deed creates a presumption of non‑delivery.
• Both presumptions are rebuttable by evidence of actual intent.

Examples of effective delivery without physical handover:

• Grantor signs a deed and mails it to Grantee.
• Grantor signs a deed and tells Grantee over the phone, “I have executed the deed to Blackacre; from now on, it is yours,” then puts the deed in his desk for safekeeping.

If the grantor’s intent is that the deed operate only at death, not immediately, delivery fails. That is essentially an attempted will without the required formalities.

Problematic “Delivery” – Retained Power to Revoke

If the grantor gives the deed to a third party but reserves the right to recall or change it, there is ordinarily no delivery. The grantor has not relinquished control.

Example (from the source corpus):

• Grantor gives a deed to an attorney saying: “Transfer this deed to B in two months, unless I change my mind before then.” Because Grantor can change his mind, there is no present intent to transfer; no effective delivery has occurred.

Conditional Delivery Directly to the Grantee

A classic MBE trap involves a deed that is absolute on its face but is handed to the grantee with an oral condition:

• “This deed is yours only if you marry by the end of the year.”
• “This is effective only if you pay me the remainder of the price next month.”

In most jurisdictions:

• When the grantor hands an absolute deed directly to the grantee, delivery is effective immediately, and
• The oral condition is ignored under the parol evidence rule. The grantor cannot use oral statements to limit the effect of an otherwise complete, unambiguous deed.

Thus, in those cases the grantee generally takes title immediately, regardless of whether the oral condition occurs.

Delivery via Third Party (Escrow)

Grantors can also deliver deeds through a neutral third party.

Key Term: Escrow
An arrangement where a grantor delivers a deed to a neutral third party with instructions to deliver it to the grantee upon satisfaction of stated conditions (such as payment of the price). Title passes automatically when the condition occurs.

Key points for escrow delivery:

• The grantor must make an irrevocable delivery to the escrow agent, intending that title pass when the condition is met.
• If there is a valid contract of sale (e.g., a land sale contract), the grantor generally cannot recall the deed once placed in escrow.
• When the condition occurs, title passes as of the date the agent was initially handed the deed (under the “relation‑back” doctrine), unless that would unfairly prejudice intervening rights.

By contrast, handing a deed to the grantor’s own agent with instructions to “hold and deliver later if X happens” is often treated as if the grantor retained possession; the ability to change instructions suggests no present intent.

Worked Example 1.2

Grantor executes a deed conveying Blackacre to Grantee and places it in a locked box, telling Grantee, "The key is under the mat; Blackacre is yours when I die." Grantor continues to live on Blackacre. Grantor later changes his mind and destroys the deed. Is the deed valid?

Answer:
No. Grantor’s statement shows he intended the deed to be effective only at his death, not immediately. He retained full control: he kept the deed in his own box and then destroyed it. That is an attempted testamentary transfer without will formalities, so there was no effective delivery and no transfer of title.

Worked Example 1.3

Grantor signs and hands an otherwise valid deed to Grantee, saying, “Here is the deed to Blackacre, but it is not to be effective unless you pay me the remaining $10,000 next month.” Grantee takes the deed home and puts it in a drawer without paying. A week later, Grantor purports to revoke the deed and conveys Blackacre to Buyer, who pays value and has no notice of the first deed. Who holds title?

Answer:
Grantee holds title. Physical delivery of an absolute deed to the grantee creates a presumption of present transfer. The oral condition is disregarded; parol evidence cannot be used to impose a condition inconsistent with the unconditional deed. Grantor had already transferred title to Grantee and had nothing left to convey to Buyer.

Worked Example 1.4

Grantor signs a deed conveying Blackacre to Buyer and delivers it to an escrow agent with written instructions: “Deliver this deed to Buyer when Buyer pays the remaining $50,000 of the purchase price.” There is a separate, valid installment land sale contract between Grantor and Buyer. Before payment is completed, Grantor tells the escrow agent, “I’ve changed my mind—give the deed back.” The agent refuses and later delivers the deed to Buyer when Buyer finishes paying. Has Buyer obtained title?

Answer:
Yes. Grantor made an effective escrow delivery by giving the deed to a neutral escrow agent with conditions, backed by an enforceable contract of sale. Grantor could not unilaterally revoke. Title passed automatically to Buyer when the condition (payment) was satisfied, relating back to the time the deed was originally handed to the escrow agent.

Return or Destruction of the Deed After Delivery

Once delivery has occurred and title has passed:

• Returning the deed to the grantor does not undo the conveyance.
• Tearing up or otherwise destroying the deed document also does not reconvey title.

To get title back, the grantee must execute and deliver a new deed back to the grantor. The MBE sometimes tests this to see if you mistakenly think physical control of the paper equals ownership.

Acceptance

Like delivery, acceptance is required for a deed to be effective, but acceptance is rarely a real obstacle in exam fact patterns.

Key Term: Acceptance (Deeds)
The grantee’s assent (actual or presumed) to receive the interest conveyed by the deed.

Key rules:

• Acceptance may be express (e.g., “Thank you, I accept”) or implied from the grantee’s conduct (such as taking possession or recording the deed).
• Acceptance is presumed if the conveyance is beneficial to the grantee, even if the grantee is unaware of it at the time of delivery.

Thus:

• A gift of valuable land is presumed accepted when delivered, even if the grantee only learns of it later.
• A transfer that imposes substantial burdens (e.g., requiring the grantee to assume a large mortgage) may not be presumed accepted until the grantee knows of it and manifests assent.

A grantee can, however, reject a deed:

• Rejection must be clear (e.g., returning the deed and stating, “I do not want the property”).
• If the grantee rejects, no transfer occurs and title remains with the grantor.

If the grantee later changes her mind and wants the property, the grantor must execute a new deed.

Worked Example 1.5

Grantor executes a deed conveying Whiteacre, a valuable property, to Grantee as a gift. Grantor records the deed but never informs Grantee. Grantee only learns of the deed years later. Was there valid acceptance?

Answer:
Yes. The conveyance was beneficial—a gift of valuable land—so acceptance is presumed at the time of delivery. Recording the deed is evidence Grantor intended an immediate transfer. Grantee’s lack of knowledge does not defeat presumed acceptance, so title passed when Grantor delivered the deed for recording.

Relation Back and Third Parties

Where delivery and acceptance occur at different times (for example, through escrow), acceptance often relates back to the earlier date of delivery to the escrow agent. This can matter if:

• The grantor dies between delivery to escrow and satisfaction of the condition; or
• Creditors or other claimants emerge during that gap.

However, relation back will not be allowed if it would unfairly prejudice intervening rights, particularly those of bona fide purchasers or creditors who relied on the record.

Additional Considerations (Not Required for Validity Between Parties)

Certain formalities often appear in deeds but are not required for a deed to be valid between grantor and grantee. They may, however, matter for recording or for remedies.

Consideration

A deed does not require consideration. Land can be conveyed as a gift.

• The absence of consideration does not affect the validity of the deed between the parties.
• But lack of consideration can be relevant under recording acts. A donee who receives a deed as a gift is usually not a bona fide purchaser and may lose priority to a later purchaser for value who records.

Seal

The old common‑law requirement that deeds be sealed has been abolished in nearly all states. A seal is not required for validity.

Attestation and Acknowledgment

Attestation (witness signatures) and acknowledgment (a declaration before a notary) have two different roles:

• Between grantor and grantee:
  • Deeds are generally valid without witnesses or notarization.
• For recording:
  • Most jurisdictions require acknowledgment or attestation before the deed can be accepted for record in the public land records.

Thus, a deed may be perfectly valid but unrecordable until acknowledged.

Capacity, Fraud, and Duress

The grantor must have legal capacity:

• A deed executed by someone adjudicated incompetent or by a minor is typically voidable at the grantor’s option.
• Deeds procured by fraud, duress, or undue influence are also voidable, not automatically void, so that a later BFP may be protected.

This distinction matters when analyzing competing claims under a recording act.

Types of Deeds and Warranties

The form of deed—general warranty, special warranty, or quitclaim—does not affect basic validity. It affects the scope of title covenants and thus the grantee’s potential remedies.

• General warranty deed – contains six covenants (seisin, right to convey, against encumbrances, quiet enjoyment, warranty, and further assurances) and protects against all title defects, even those arising before the grantor’s ownership.
• Special warranty deed – contains the same covenants but only as to defects arising while the grantor held title.
• Quitclaim deed – conveys whatever interest the grantor has (if any) without title covenants.

On the MBE, be ready to separate:

• Does the deed validly transfer whatever interest the grantor has? (Formal requirements and delivery/acceptance.)
  from
• How much protection did the grantee receive against defects? (Type of deed and covenants.)

Interaction with Recording Acts (Exam Caution)

Recording (or failing to record) does not affect the validity of a deed between the original parties. A deed can be:

• Valid between grantor and grantee, even if unrecorded; but
• Subordinate to a later BFP’s title under the applicable recording statute.

Do not confuse:

• Requirements for a valid deed (writing, grantor signature, adequate description, present intent, delivery, acceptance), with
• Requirements for recording (acknowledgment, etc.), or with
• Requirements to take priority under a recording act (being a BFP and recording first, where applicable).

Key Point Checklist

This article has covered the following key knowledge points:

• A deed must be in writing to satisfy the Statute of Frauds.
• The writing must:
  • Identify the grantor and grantee,
  • Include an adequate property description,
  • Contain words of grant showing present intent to convey, and
  • Be signed by the grantor (or an authorized agent).
• Property descriptions must provide a “good lead.” Latent ambiguities can be resolved with parol evidence; patent ambiguities generally cannot.
• The grantee must be ascertainable at the time of delivery; deeds to nonexistent grantees are typically void.
• Delivery is essential and turns on the grantor’s present intent that the deed be currently operative.
• Physical transfer strongly suggests delivery, but is neither necessary nor always sufficient; the grantor’s retained control or future‑effect language can defeat delivery.
• Handing an absolute deed to the grantee with an oral condition creates an effective delivery; the oral condition is disregarded.
• Escrow delivery through a neutral third party is valid when accompanied by irrevocable instructions and usually cannot be revoked if backed by an enforceable contract.
• Once delivery has occurred, returning or destroying the deed does not undo the transfer; a new deed is required for reconveyance.
• Acceptance is required, but is presumed when the transfer is beneficial. A grantee may reject a deed, in which case no transfer occurs.
• Consideration, a seal, witnesses, and acknowledgment are generally not required for deed validity between the parties, though acknowledgment is usually needed to record.
• Forged deeds and deeds to nonexistent grantees are void and cannot pass good title even to a BFP; deeds procured by fraud, duress, or incapacity are typically voidable and may be cut off by a BFP.
• After closing, the merger doctrine means that claims about title must be based on the deed (and its covenants), not the land sale contract.

Key Terms and Concepts

• Deed
• Statute of Frauds
• Grantor
• Grantee
• Legal Description
• Words of Grant
• Present Intent
• Latent Ambiguity
• Patent Ambiguity
• Delivery (Deeds)
• Escrow
• Acceptance (Deeds)
• Void Deed
• Voidable Deed
• Merger Doctrine
• Bona Fide Purchaser (BFP)