PastPaperHero | Titles - Transfer by deed

Learning Outcomes

This article explains transfer of title to real property by deed, including:

Identifying and articulating the formal requirements for a valid deed—writing, adequate property description, parties, words of present transfer, signature, and any required acknowledgments or witnesses.
Distinguishing among general warranty, special warranty, and quitclaim deeds, and predicting how the scope of covenants affects the grantee’s remedies on MBE-style questions.
Analyzing delivery and acceptance, with emphasis on intent, presumptions created by physical transfer or recording, and common traps involving oral conditions.
Comparing direct delivery to the grantee with delivery through a third party or in escrow, and determining when a “death escrow” creates a present interest versus an invalid testamentary attempt.
Explaining the operation of recording statutes in notice, race–notice, and race jurisdictions, and using concepts such as constructive notice, chain of title, and wild deeds to rank competing claimants.
Distinguishing void from voidable deeds, and evaluating how forgery, incapacity, fraud, or failure of formalities affects subsequent purchasers.
Applying the bona fide purchaser doctrine, the shelter rule, and estoppel by deed to complex priority problems so you can confidently select the best answer under exam time pressure.

MBE Syllabus

For the MBE, you are required to understand transfer of title to real property by deed, with a focus on the following syllabus points:

Formal requirements of deeds: writing, parties, description, words of present transfer, signature, and execution issues.
Delivery and acceptance: grantor’s intent, presumptions, conditional delivery, and escrow arrangements.
Recording: purposes, mechanics, and the effect of notice, race-notice, and race statutes on priority.
Protection of bona fide purchasers, the shelter rule, and the limits of recording (e.g., void deeds, wild deeds).
Consequences of defective deeds, including forged instruments, lack of delivery, and deeds obtained by fraud or duress.

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.

Which of the following is NOT required for a valid transfer of title by deed?
1. The deed must be in writing.
2. The deed must be signed by the grantor.
3. The deed must be delivered to and accepted by the grantee.
4. The deed must be recorded.
If a grantor hands a signed deed to the grantee but tells the grantee, "Do not record or use this deed until after my death," what is the likely result?
1. Title passes immediately.
2. Title passes only after the grantor's death.
3. No delivery has occurred, so title does not pass.
4. The deed is void for lack of consideration.
Which of the following best describes the effect of recording a deed?
1. It is required for the deed to be valid between grantor and grantee.
2. It gives constructive notice to subsequent purchasers.
3. It cures all defects in the deed.
4. It is required for the deed to be valid if the grantee is a minor.

Introduction

A deed is the primary instrument for transferring legal title to real property. For a transfer by deed to be effective, certain formalities must be satisfied: the deed must be properly executed, delivered, and accepted. Recording the deed is not required for validity between the parties, but it is central to resolving priority disputes with later purchasers and creditors.

At a typical closing, the land-sale contract “merges” into the deed, and any later claim about title usually arises from the deed, not the contract. Exam questions frequently test whether a deed validly transferred title, whether an attempted condition on delivery is effective, and how recording affects competing claims.

Key Term: Deed
A written instrument that transfers legal title to real property from one party (the grantor) to another (the grantee).

Formal Requirements for a Valid Deed

A deed must satisfy the Statute of Frauds and certain common-law requirements to be valid.

Core formalities:

The deed must be in writing.
The deed must identify the grantor and grantee.
The deed must adequately describe the property.
The deed must contain words of present transfer.
The deed must be signed by the grantor.

Writing and parties

The Statute of Frauds requires a writing signed by the grantor. The grantee’s signature is not required, even if the deed contains covenants by the grantee; acceptance is enough to bind the grantee.

The grantor must be a person or entity with legal capacity to convey. The grantee must be sufficiently identifiable and must exist at the time of conveyance. A deed “to my best friends” is too vague; a deed to “my children” is usually acceptable because the class is objectively determinable.

Property description

The description must be definite enough that the land can be located, either on the face of the deed or by reference to external facts. Exact precision is unnecessary, but a description that makes identification impossible renders the deed void for vagueness.

Common patterns:

Street address can be sufficient if unique.
Metes and bounds descriptions (angles, distances) control over inconsistent general descriptions.
Ambiguities may be resolved with extrinsic evidence; patent impossibility (e.g., “a square with 200-foot sides whose corner is somewhere north of X” with no fixed point) cannot.

Words of present transfer

The deed must use language showing a present intent to convey: “grant,” “convey,” or “I hereby give Blackacre to B” are sufficient. Language that is purely future-oriented (“I will convey Blackacre to B next year”) is not a present conveyance.

Signature and execution

The deed must be signed by the grantor (or an authorized agent). If the agent signs outside the grantor’s presence, authority typically must be in writing. Witnesses, seals, and acknowledgments are generally not required for validity between the parties, but many jurisdictions require acknowledgment before a notary to permit recording.

Consideration is not required: a deed can transfer property by inter vivos gift as long as there is donative intent, delivery, and acceptance.

Types of Deeds and Warranties

On the MBE, three deed types appear frequently. They differ only in the scope of title protection, not in the mechanics of transfer.

Key Term: General Warranty Deed
A deed in which the grantor warrants against all title defects, whether arising before or during the grantor’s ownership, and usually includes six covenants (seisin, right to convey, against encumbrances, quiet enjoyment, warranty, and further assurances).

Key Term: Special Warranty Deed
A deed in which the grantor warrants only against title defects that arose while the grantor held title, not against defects created by prior owners.

Key Term: Quitclaim Deed
A deed that contains no title warranties; the grantor conveys whatever interest, if any, the grantor has, but does not promise that title is good.

Key points:

A quitclaim deed can validly transfer whatever interest the grantor has; it is not “less valid,” just less protective.
Warranty covenants are contract-like promises; breach timing matters:
- Present covenants (seisin, right to convey, against encumbrances) are breached, if at all, at delivery.
- Future covenants (quiet enjoyment, warranty, further assurances) are breached only when the grantee’s possession is disturbed or they incur loss defending title.

The type of deed affects remedies for title defects, not whether title passes at all. A properly executed quitclaim deed will pass title if the grantor actually has title.

Delivery of the Deed

Delivery is the act by which the grantor manifests an intention that the deed have present legal effect. The controlling question is intent, not mechanics.

Key Term: Delivery (of Deed)
The grantor’s act or intent to make the deed immediately effective to transfer title, regardless of physical transfer.

Physical vs. constructive delivery

Physical transfer (handing the deed over) is strong evidence of delivery but is not required. Delivery can occur without manual transfer (for example, a phone call informing the grantee that the deed has been executed and recorded), and mere manual transfer without intent is not delivery.

Typical rules and presumptions:

Handing an executed deed to the grantee raises a rebuttable presumption of delivery.
A deed that is acknowledged by the grantor and recorded also raises a presumption of delivery.
If the grantor retains possession of the deed, there is a rebuttable presumption of no delivery.

Title passes upon effective delivery. Once title passes, the grantor cannot “undo” delivery by taking the deed back; a reconveyance requires a new deed from grantee to grantor.

Parol evidence and delivery

Courts freely admit parol evidence (including the grantor’s statements and conduct) to determine whether the grantor intended any present transfer at all. However, a critical MBE distinction:

If an absolute deed is delivered directly to the grantee, most jurisdictions do not allow parol evidence to show that delivery was subject to an oral condition (e.g., “this deed is effective only if you pay me later” or “only if I do not return from surgery”). The condition is ignored; delivery is effective.
Parol evidence is admissible to show that the grantor intended the deed to have no present effect at all (i.e., it was merely a testamentary instrument masquerading as a deed).

Acceptance of the Deed

Acceptance by the grantee is required for a transfer to be effective, but this requirement is rarely problematic.

Key Term: Acceptance (of Deed)
The grantee’s agreement to receive the deed and take title, usually presumed unless expressly refused.

Key points:

Acceptance is presumed when the conveyance benefits the grantee, even if the grantee is unaware of it at the moment of delivery.
Acceptance can be shown by acts (taking possession, paying taxes, mortgaging the property).
A grantee can reject a deed, expressly or impliedly; rejection prevents title from passing.
A later attempted rejection after valid acceptance (including after recording) generally does not divest title; a new deed is needed to reconvey.

Minors and incompetents can accept deeds; they may have contractual defenses but can still hold title.

Recording the Deed

Recording does not determine whether title passes between the original grantor and grantee; it affects only priority as against later claimants.

Key Term: Recording (of Deed)
The act of placing a deed in the public land records, creating constructive notice to third parties of the transfer.

Functions of recording:

Gives constructive (record) notice to subsequent purchasers and creditors.
Protects qualifying bona fide purchasers (BFPs) against prior unrecorded interests under the applicable recording act.
Creates presumptions of delivery and authenticity (rebuttable).

Key Term: Bona Fide Purchaser (BFP)
A person who gives value, takes an interest in land, and has no actual, record, or inquiry notice of a prior conflicting interest at the time of conveyance.

Basic recording-act frameworks:

Notice statute: A subsequent BFP without notice prevails over a prior unrecorded interest, whether or not the BFP records first.
Race–notice statute: A subsequent BFP without notice prevails only if the BFP also records first.
Race statute (rare): First to record wins, regardless of notice.

Recording mechanics matter for notice. A deed must be recorded in a way that places it in the grantor’s “chain of title” to give constructive notice.

Key Term: Wild Deed
A recorded deed that is not connected to the chain of title (for example, because a prior deed to the grantor was unrecorded), and therefore does not give constructive notice to subsequent purchasers.

Example: O conveys to A (unrecorded). A conveys to B, and B records. O then conveys to C, a BFP who searches the records. The A–B deed is a wild deed; it is not linked to O’s chain of title, so C is not charged with notice of B’s interest.

Limits of recording:

Recording does not validate a void deed (e.g., a forgery or undelivered deed).
Recording acts generally do not protect against interests that arise by operation of law (e.g., adverse possession, certain implied easements).

Delivery Through a Third Party and Escrow

Grantors often use an intermediary (escrow agent, attorney, broker) to hold and release the deed upon satisfaction of a condition, such as payment of the purchase price.

Key Term: Escrow
A deed delivered to a neutral third party with instructions to deliver it to the grantee upon satisfaction of a specified condition.

Delivery to a third party with instructions is usually treated very differently from conditional delivery directly to the grantee:

If the grantor delivers the deed to an escrow agent with clear, irrevocable instructions to deliver upon a stated condition (e.g., payment of the price), delivery is effective when the condition occurs. Title may “relate back” to the date of deposit in escrow for some purposes.
If the grantor reserves the right to call back the deed (“give this deed to B in two months, unless I change my mind”), there is no present delivery; the grantor has not parted with control.

“Death escrows” are a common exam pattern:

If the grantor gives the deed to a third party with instructions to deliver it to the grantee at the grantor’s death and does not retain the right to reclaim the deed, most courts treat this as a present transfer of a future interest: the grantor retains a life estate, and the grantee receives a vested remainder.
If the grantor retains the right to take the deed back or to change the grantee, there is no present transfer; the instrument is an ineffective attempt at a will unless it complies with will formalities.

Defective Deeds and Conditional Delivery

A deed that is not properly executed, delivered, or accepted is ineffective to transfer title. It is important to distinguish void from voidable deeds.

Void deeds (no title passes even to a BFP):

Forged deeds.
Deeds never delivered.
Deeds to non-existent grantees.
Deeds that completely fail the Statute of Frauds (e.g., no writing or no identifiable grantee or land).

Voidable deeds (title passes unless and until the deed is set aside):

Deeds executed by minors or persons lacking capacity.
Deeds induced by fraud, misrepresentation, or duress.
Deeds given in exchange for inadequate consideration (if accompanied by equitable infirmities).

Recording can never cure a void deed; recording may protect a BFP taking from someone who has voidable but not yet voided title.

Conditional delivery nuances:

A deed that is unconditional on its face but delivered directly to the grantee is generally treated as an absolute delivery, even if the grantor orally states a condition (e.g., “do not record until I die,” “this is effective only if you pay later”). The oral condition is disregarded.
If the parties truly intended no present effect (e.g., “I’m giving you this deed so that you can have the property when I die, not before”), courts may find no delivery at all; the deed is ineffective and the attempted transfer is testamentary.

Special Recording Doctrines: Shelter Rule and Estoppel by Deed

Two doctrines commonly tested with recording issues are the shelter rule and estoppel by deed.

Key Term: Shelter Rule
A doctrine under which a person who takes from a bona fide purchaser acquires the same rights and protections as that bona fide purchaser, even if the transferee has notice of prior unrecorded interests.

Example: O conveys to A (unrecorded). O later conveys to B, a BFP who records. B then conveys to C, who knows about the prior deed to A. In a notice state, C prevails over A because C “shelters” under B’s BFP status.

Key Term: Estoppel by Deed
A doctrine under which a grantor who conveys land the grantor does not own is estopped from denying the validity of that deed once the grantor later acquires title; title automatically passes to the earlier grantee.

Example: O does not own Blackacre but purports to convey it by warranty deed to A. Later O acquires Blackacre from the true owner. Under estoppel by deed, title passes to A; O cannot assert ownership against A.

These doctrines do not change the basic rules of delivery or execution, but they determine whose title prevails when chains of deeds and recordings become complex.

Worked Example 1.1

Grantor signs and hands a deed to Grantee, saying, “I want you to have Blackacre when I die, and I’m giving you this deed so you can have it at that time. Until then it’s still mine.” Grantee puts the deed in a drawer. Grantor dies. Is title transferred to Grantee?

Answer:
No. The grantor’s statements show an intent not to make the deed immediately effective. The deed was treated as a substitute for a will, operative only at death. Because there was no present intent to transfer any interest, there was no valid delivery and no transfer of title by deed.

Worked Example 1.2

Grantor executes a deed and gives it to an escrow agent, instructing the agent to deliver the deed to Grantee when Grantee pays the purchase price. Grantee pays the price, and the agent delivers the deed. Has title passed to Grantee?

Answer:
Yes. Delivery to a third party (escrow) with irrevocable instructions to deliver upon a condition is valid. Title passes to Grantee when the condition (payment) is satisfied and the deed is delivered as instructed, and may relate back to the date the deed was deposited in escrow.

Worked Example 1.3

Grantor signs and hands an absolute deed to Grantee, saying, “This deed is not to be effective unless you pay me the rest of the price next month.” Grantee takes the deed but never pays the balance. Grantor sues, claiming there was no delivery. Who holds title?

Answer:
Grantee. The deed was unconditional on its face and was delivered directly to the grantee. Under the majority rule, parol evidence is not admissible to show an oral condition on delivery to the grantee. The condition is ignored, so delivery was effective when the deed was handed over, and title passed immediately. Grantor may have a contract claim for the unpaid balance but cannot reclaim title on the basis of non-delivery.

Worked Example 1.4

O conveys Blackacre to Charity by quitclaim deed as a gift. Charity does not record. Later O sells Blackacre by warranty deed to Purchaser for value; Purchaser has no notice of Charity’s deed and promptly records. Charity records a month later. A year later, Purchaser gives Blackacre to Son by quitclaim deed; Son has notice of Charity’s claim and then records. The jurisdiction has a notice statute protecting subsequent purchasers for value without notice who record. Who owns Blackacre?

Answer:
Son. Purchaser was a bona fide purchaser for value without notice and recorded, so Purchaser’s title prevails over Charity’s under the notice statute. Son, although a donee with notice, takes under the shelter rule: he steps into Purchaser’s BFP status and is protected to the same extent, even though Son himself did not give value and had notice of Charity’s prior deed.

Exam Warning

Many students mistakenly believe that recording is required for a deed to be valid. In fact, recording is not necessary for validity between grantor and grantee. A deed that is properly executed, delivered, and accepted transfers title even if it is never recorded. Recording becomes important only when there is a later claimant, such as a subsequent purchaser or creditor, whose rights depend on the applicable recording statute.

Revision Tip

When analyzing delivery:

Ask first whether the deed was executed with the formalities required (writing, parties, description, signature).
Then focus on the grantor’s intent at the time of the alleged delivery. Physical transfer alone does not guarantee delivery if the grantor did not intend any present effect; conversely, a valid delivery can occur without physical transfer (for example, by recording with appropriate intent).
Distinguish carefully between (i) a deed delivered to the grantee with an oral condition (usually effective immediately) and (ii) a deed delivered to a third party in escrow (condition can be effective if instructions are irrevocable).

Key Point Checklist

This article has covered the following key knowledge points:

A deed must be in writing, identify the parties, describe the property, contain words of present transfer, and be signed by the grantor; consideration is not required.
A deed’s type (general warranty, special warranty, or quitclaim) affects the scope of title protection, not the mechanics of transfer.
Delivery is about the grantor’s present intent to transfer an interest; physical transfer is evidence but not the essence of delivery.
Once a valid delivery occurs, returning the deed to the grantor does not cancel the conveyance; a new deed is required to reconvey title.
Parol evidence is admissible to show that no delivery was intended but generally not to impose an oral condition on a deed delivered directly to the grantee.
Conditional delivery through escrow is valid if the grantor relinquishes control and gives clear instructions; title passes when the condition is fulfilled.
Acceptance is usually presumed for beneficial conveyances; rejection prevents title from passing.
Recording is not required for validity between the parties but provides constructive notice and is central to resolving conflicts under notice, race–notice, and race statutes.
A “wild deed” recorded outside the chain of title does not give constructive notice to later purchasers.
Void deeds (e.g., forgeries, undelivered deeds) transfer no title even to a BFP; voidable deeds transfer title unless and until set aside.
The shelter rule allows someone taking from a BFP to claim the BFP’s protections, even with notice.
Estoppel by deed gives title to a grantee when a grantor who lacked title at the time of conveyance later acquires title.

Key Terms and Concepts

Deed
Delivery (of Deed)
Acceptance (of Deed)
Recording (of Deed)
Escrow
General Warranty Deed
Special Warranty Deed
Quitclaim Deed
Bona Fide Purchaser (BFP)
Wild Deed
Shelter Rule
Estoppel by Deed

Titles - Transfer by deed