As any New York State attorney would most likely agree, ownership and title to real property can play an integral role in the practice of not only transactional real estate law, but also, land use development (our specialty area), matrimonial law, trusts and estates law, elder law, corporate law, and numerous other practice areas. In fact, no matter what your practice area is, it is quite likely that you will routinely be called upon to review a deed, transfer a real estate asset, set up a trust or life estate, confirm ownership or simply review a deed to insure it accurately reflects the property owners, the property owners’ interests and identifies the correct property as stated on the deed.
Although this sounds simple enough, from my experience, many an attorney has not only improperly prepared a deed, but also, he has encountered multiple hurdles in successfully recording a deed. Suffice it to say that prior to becoming a member of the Bar, my career began in the Title Insurance Industry, which by all accounts provides me with some insider expertise to share with you today!
The Do’s and Dont’s to successfully drafting and recording a deed will greatly exceed the attention span of a single blog post. As such, continue to read our weekly post’s for additional do’s and dont’s tips. For today, we start at the beginning: How to prepare a deed insuring that the seller (grantor) and purchaser (grantee) are properly reflected.
In New York State, there are multiple kinds of deeds, but in general, those most commonly used to transfer title are Warranty Deeds, Bargain and Sale Deeds without Covenants, Bargain and Sale Deeds with Covenants and Quitclaim Deeds. Prior to the advent of title insurance, the type of deed carried specific warranties which protected a purchaser from claims against their ownership. Given that title insurance is common practice today, the type of deed is less significant, and under most circumstances a Bargain and Sale Deed with Covenants is the generally preferred deed type. However, this rule is not always preferred, particularly if the real estate transfer is undertaken for estate planning purposes, is the result of a death, involves a no consideration transfer between husband and wife or relatives or related business entities. Further blog posts will address these exceptions.
For today, Don’t Number 1– when asked to transfer a real estate asset, do not assume that your client owns the property! It is incumbent upon an attorney to secure a copy of the last deed of record from the County Clerk’s Office or City Register’s office. Only after the last deed of record has been produced and reviewed with the client should the process of drafting a new deed begin.
Don’t Number 2– when preparing the deed, do not deviate from the proper names on the last deed of record or deviate from the legal property description. If the owner’s name on the deed is Mary S. Smith and Mary is transferring to John J. Jones, do not drop Mary’s middle initial. Likewise, if Mary S. Smith is now known as Mary S. Adams, the deed should be prepared as such: “Mary S. Smith, now known as Mary S. Adams.” The deed drafter must take care to insure that the chain of title accurately reflects ownership interests. If the drafter were to prepare the deed with Mary S. Adams as the owner, because that is what Mary S. Adams advised the drafter, the deed would contain a defect causing potential problems for future buyers and sellers.
Similar to the types of deeds available for use in New York, there are multiple types of interests that a seller or buyer can utilize when purchasing property. Title to real estate is held typically in one of three ways: (1) Tenants by the Entirety, reserved only to married persons; (2) Joint Tenants, reserved to persons who hold equal shares of the real estate asset, with rights of survivorship; and (3) Tenants in Common, reserved to persons and business entities holding fractional ownership interests, with no rights of survivorship.
Do Number 1– ask a lot of questions. Although deed preparation is typically assigned to the seller/grantor, if you represent the buyer/grantee, be sure that your clients understand their ownership interests. Not every married couple prefers to hold title as tenants by the entirety. There may be financial concerns, prior marital commitments or some other personal reason why a married couple would not want to hold title to real property as tenants by the entirety.
Do Number 2– if the property is owned by any number of business organizations such as Limited Liability Companies, Joint Ventures or Limited Partnerships, insure that all interests are accounted for and that no fractional share of the real estate asset has already been transferred, sold or conveyed. Likewise, insure that the the person signing the deed has capacity to transfer the asset.
And to wrap up this first blog post respecting the Do’s and Don’t of deed preparation, for those of you practicing in the world of land use, take a minute to secure the last deed of record before you make a land development application to a municipality or government agency. Many times your client is not the property owner, but instead, your client may be the tenant, co-tenant or sub-lessee/or. Only the actual landowner has capacity to make a land development application, as such, stay one step ahead of the curve and insure that your client is the real estate asset owner, and if not, secure the property owner’s consent before you begin the process.