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This blog attempts to provide a basic breakdown of the survivorship deed. Nothing in this blog should be used in place of actual legal advice. Please contact an attorney if you have any real property issues.
For Part 1: A Brief History of Conveying Property, click HERE.
A BREAKDOWN OF THE SURVIVORSHIP DEED
Let's take a look at a deed. Below you will see an example of a Warranty Deed with Joint Rights of Survivorship:
Parts of a deed:
- Identify Who Drafted the Deed
In Alabama you are required to note who drafted the deed by name and address. - Identify Parties to the Deed
The "Grantor" is the person giving away ownership and the "Grantee" is the person receiving ownership. Alabama requires that the marital status of parties also be identified (Ala. Code 35-4-73). - Consideration Clause
This clause shows how much money is being paid for the real estate. Though consideration is not required (Alabama Code 35-4-34), paying taxes is required and those taxes are based on sales price or assessed value, which must be recorded (Ala. Code 40-22-1). - Granting Clause
The language here shows that ownership is being transferred from Grantor to Grantee. - Legal Description
A geographical description of the exact piece of real property being conveyed showing the boundaries of the land. Generally there are two types of legal descriptions: Lot & Block and Metes & Bounds. Street addresses were never intended to be a reliable description of real estate; they are quick identifiers originally created for mail, taxes, and the police. - Habendum Clause
Latin for “to have.” This section literally starts with “To have and to hold” and describes the type of ownership (right or interest in the property) being conveyed. - Reddendum Clause
This is a reservation of particular rights by the Grantor and is not part of every deed. - Covenant Clause
Here you will see the types of warranties the Grantor is giving the Grantee. In Quitclaim Deeds no warranties are given, so this clause is not used. - Acknowledgement
Real estate conveyances must be in writing and signed by the Grantor to be valid. The Grantee does not have to sign (Ala. Code 35-4-21). - Notary
Notarizing a deed in Alabama removes the requirement for witnesses (Ala. Code 35-4-23).
- In this case, my office identifies the attorney who drafted it and also requests that the court return it to our office after it is recorded. We need the deed so we can process title insurance policies, then we mail the original to the Grantees.
- This is a statement to let the reader know this document is intended for public consumption. It is akin to standing on the street corner and saying "Listen up, this is for everyone to know." This statement is immediately followed by the Consideration Clause, showing that the property was sold for a certain amount or has a taxable value of a certain amount. In the past, attorneys would hide the true value of the property from the public record and just put a standard $10 value on the consideration. Most courts now require the actual value to be part of the public record to ensure proper taxes are paid.
- This part identifies the Grantors and their address. Remember, marital status is required here due to homestead rights of the spouse. Alabama automatically grants spouses a small interest in any real estate they use as their primary residence. This is to protect the spouse who may not be listed on the deed. For this reason, even if only one spouse is on the original deed, we require both spouses to sign the new deed when they sell due to the homestead right automatically granted by the State.
- This is the granting clause. Depending on what language you use here you can actually change the type of conveyance being made. The language you see here is our standard language for a warranty deed.
- This is identifying the Grantees and their address. Almost universally now we add the marriage status of the Grantees just like the Grantors. It lets the next person who drafts a deed for this property know the status of the person when they took ownership, which again can have a big impact when trying to sell homesteaded property. Plus, most courts in our area require it these days.
- See Deeds Part 1 for why this is important. In short, there are different ways you can own land, and the fee simple ownership is the best you can get.
- This identifies the address of the property being sold. Once again, this is mostly for tax purposes, but also helps people quickly identify what is being sold.
- This is a geographical description of the actual land being conveyed. No matter what address is on the deed, this is what is being conveyed. Legal descriptions can get complex and confusing, and it is not absolutely necessary for you to understand them; your attorney/title agent is there to help you with this. The key thing to remember is that if you have a metes & bound description you may want to consider getting a survey. Ask your agent/attorney if they recommend one for your property.
- This links your new deed to the one directly before it. This helps create one part of what we call the “Chain of Title.” If you can consider each deed to be a link in the chain, you should be able to follow the chain to discover every owner for that piece of property.
- This is the Habendum Clause. Typically we place a small version of this clause just after the Grantee information above and then put the full Habendum Clause here. It helps everyone know what type of ownership is being conveyed. In our case, the example shows a survivorship clause -- when one owner dies, their interest in the real estate immediately and automatically transfers to the surviving party.
- The Covenant Clause is what makes this deed a Warranty Deed. In layman's terms, the Grantors are promising to the Grantees that they are the only owners and there aren’t any liens or encumbrances being transferred with the ownership.
You can find additional information on deeds in our Contracts blog post. Please contact your attorney if you need a deed or have any questions.
