How To Wednesday… Draft a Deed.

deeds

Transferring property to another person should be simple enough but the process often seems confusing and complicated.  Take your typical home sale, for example.  Many people choose to list a home with a realtor which requires a listing contract, a disclosure of the property condition, offers, counteroffers, purchase agreements. And those documents are all before the house even sells. At closing you will be provided a title insurance policy or abstract, sometimes a satisfaction of mortgage, and, FINALLY,  a deed.

The deed is the document that actually transfers the property.  But deeds come in many different forms – quit claim, warranty, personal representative, trustee, transfer on death, and I’m sure I’m missing some.  What I hope to teach you today is a little bit about the different kinds of deeds and the essential elements of a deed.

Warranty Deed.  This deed promises that the property being transferred is actually owned by the person signing the deed.

Quit Claim Deed. This deed makes no promises about ownership.  I could give you a quit claim deed to the White House and you would have no recourse for me lying about owning it.

Personal Representative’s Deed. This is a deed used when the estate of a deceased person is selling or transferring property.

Trustee’s Deed. This deed is used when a trust is selling or transferring property.

Transfer on Death Deed.  This is a deed that can be signed and recorded but only takes effect when the person making the transfer (the Grantor) dies.

 

Deeds come in many varieties but all of them have some very basic elements:

Grantor:  the person signing the deed, transferring it to whoever the property is going to.

Grantee: the person receiving the property

Property Description:  This is the legal description of the property being transferred. It is not the same as the street address.  In most of Northern Wisconsin property descriptions are based on the Public Land Survey System that was used centuries ago to map the United States.  Each piece of land falls into a Range number, a Section of that Range and a Township of that Section. But when property is described the description goes from the most specific to the broadest category.  This is why legal descriptions often read, “The Southern one-half (1/2) of the Eastern one-half (1/2) of the Southwest quarter of Section Ten (10) Township Eighteen (18) North Range Twelve (12) West, Douglas County, State of Wisconsin.”  (This is a completely made up description.)

For more information about understanding the Public Land Survey System and property descriptions, read this tutorial from the Wisconsin Department of Revenue. Public Land Survey Tutorial.

Property descriptions can also come in the form of surveys.  These could be surveys that are already recorded with the County (Lot 2, Certified Survey Map 231) or in a description called “metes and bounds” (starting at a point at the Southwest Corner of Section 16, then North 250’ at an angle of 89 degrees…)  Metes and bounds descriptions use angles and distances to describe the outline of the property.

Usually, the best place to find the legal description of your property is on the deed you received when the property was transferred to you. A word of caution – some old forms of legal descriptions are no longer allowed. For example, vhealthportal.com/product-category/antifungals/, a legal description cannot be based upon reference to other deeds or document numbers.

Signature: the person transferring the property must sign the deed.

Authentication or Acknowledgement:  the deed must be signed either by an attorney or a notary public.  The Grantor should sign the deed in front of the attorney or notary so that it can be signed by them at the same time.

Identification of Drafter:  Wisconsin law requires that the person who drafted the deed must identify themselves.

Return To:  once the deed is recorded at the local register of deeds office, they return the original to the person identified.

Transfer Return:  The State of Wisconsin imposes a tax on certain property transfers. If you are selling or transferring property you should check with the Department of Revenue’s website for information about whether 1) you need to file a Transfer Tax Return; and 2) Whether any tax is actually owed.  If you do need to pay the tax, you will have to complete the form online, pay the tax, and submit proof of payment with the deed when you record it in your county.

Register of Deeds Office: Each county has an office that keeps records of deeds and other documents affecting property (mortgages, liens, leases, etc.)  The Register of Deeds office is open to the public; it is the place where anyone can find out about who owns what property and whether there is any issue with the ownership.  In order for a transfer of property to be complete, it must be recorded so that the world at large knows about the transfer.  There is a fee for recording a deed.

 

I typically don’t advise people to go off and try to do deeds by themselves. There are lots of steps where mistakes can be made.  I do tell clients that if they want to start the paperwork and have me review it, I can do that. By having the information ready ahead of time – proper legal names, accurate and current legal description, the job of a lawyer in helping draft a deed is made much simpler.  I have had clients ask me to review deeds they drafted which were just perfect and ready to be signed and recorded.  It can be done by you, but you would be wise to do your homework first to make certain you are doing it correctly.

For more information about deeds, other real estate documents and how to record them, visit the Wisconsin Register of Deeds Association’s website.

 

Johanna R Kirk – Attorney

Kirk Law Office, L.L.C.  1418 Tower Ave, Suite #6; Superior, WI 54880 (715) 718-2424