By Andrew Wipke & Jennifer Fox
Assistant County Attorneys in Fort Bend County
Since early humans shifted from a hunter-gatherer, nomadic lifestyle to an agricultural society, the concept of owning and exchanging land has played a significant role in our history. As the need for permanent settlements grew, so did the value of land ownership and the need to formalize and document the conveyance of real property.[1] Early property[2] transactions were often recorded on clay tablets or papyrus scrolls and required some type of symbolic performance or ceremonial act to legally transfer land from one party to another.[3] One such ceremonial act performed in medieval England and up to the establishment of the American Colonies was the “livery of seisin,” which translates to “delivery of possession.”[4] Livery of seisin was a publicly witnessed transaction and required the transferor, or “grantor,” of the property to physically hand over dirt or twigs from the land to the transferee, or “grantee,” thus establishing delivery of the land and the rights of the grantee to its possession.[5]
As literacy increased and publicly available records grew, the need for ceremonies and physical actions to legally convey land became futile. We are thankful we now live in a time where one is not required to transfer clumps of dirt or twigs or perform some other type of ceremony to legally convey property. Rather, such practices have evolved into essential written instruments by which a grantee takes title[6] to property: a deed.[7] While the process of conveying property has been simplified by written instruments, drafting and reviewing deeds entails some complexities county practitioners should note to avoid future disputes and ensure the deed’s effectiveness and enforceability. Whether you reside in a rural or urban jurisdiction, your county will likely need to acquire real property for some reason, including the construction of roads and public facilities, creation of parks, or other public purposes. The frequency of real property-related transactions, especially for urban counties, can occur weekly.
This article provides an initial guide to drafting and reviewing deeds for county practitioners, including an overview of types of deeds, their necessary elements, and pitfalls to avoid.
Which deed do you need?
Various types of deeds are utilized in property transactions. But which deed do you need? The type of deed one chooses depends on the nature of the transaction and the desired level of protection. The four most common deeds used in Texas are:
• general warranty deeds,
• special warranty deeds,
• deeds without warranty, and
• quitclaim deeds.
A general warranty deed expressly warrants the entire chain of title dating back to when the sovereign owned the property (e.g., the state of Texas)[8] and uses the following warranty language:
“Grantor binds itself, its successors, and its assigns to warrant and forever defend all and singular the title to the Property to Grantee, its successors, and its assigns against any person lawfully claiming or to claim the same or any part thereof.”
This language expressly obligates the grantor of the property to defend against any defects[9] in the chain of title, even if those defects were created before the grantor owned the property.[10] A general warranty deed offers a county the most protection against title defects and may be the preferred deed when acquiring property. However, in contrast, when a county is conveying its property, the county should be wary in making such broad warranties, especially if the county is unsure about the property’s title prior to its ownership.
Instead, a county should use a special warranty deed when conveying its property. A special warranty deed obligates a grantor to warrant against any title defects that occurred only during the grantor’s period of ownership[11] and relieves a grantor of liability for any defects that occurred prior. A special warranty deed uses the following warranty language:
“Grantor binds itself, its successors, and assigns to warrant and forever defend all and singular the Property to Grantee and Grantee’s successors and assigns against every person whomsoever lawfully claiming or to claim the same or any part thereof when the claim is by, through or under Grantor, but not otherwise.”
Unlike a general or special warranty deed, a deed without warranty (as the name indicates) does not provide any warranties against title defects. A deed without warranty is generally used when a seller may be unsure of title to the property or there are gaps in the chain of title. A deed without warranty uses the following language:
“Grantor conveys to Grantee the property without warranties, express or implied. All warranties that might arise by common law and by Section 5.023 of the Texas Property Code, as amended, are hereby excluded.”
This type of deed purports to convey the property and not merely a right or interest in the property.[12] County practitioners may encounter this type of deed in transactions concerning a county’s acquisition of property in an old neighborhood, such as those more than 100 years old. It is not uncommon for some of these properties to be conveyed or passed down over the years from one owner or family member to another without recording a deed in the official public records of the county. In turn, any records concerning the unrecorded deed are often lost, thus creating gaps in the chain of title. A property owner in this situation may be unwilling or reluctant to warranty title in a deed to the county. However, counties should still be wary and weigh the consequences of accepting these deeds as a grantee because the county assumes the risk concerning any title defects.[13]
A deed without warranty is only slightly better than a quitclaim deed, which is a misnomer because it is not really a deed at all. A quitclaim deed does not transfer title to property and purports to transfer to the grantee only whatever rights or interest a grantor has in the property, if any.[14] Nor does it warrant or profess that title to the property is valid,[15] and the grantee takes no more than the grantor can lawfully convey, “even if it turns out that they convey nothing.”[16] A quitclaim deed can also have severe, negative impacts because it is insufficient by itself to prove ownership of a property,[17] and it clouds title.[18] This may result in costly quiet title[19] actions to remove a cloud on title.[20]
There is no express language that identifies a quitclaim deed. Instead, “courts look to whether the language of the instrument, taken as a whole, conveyed property itself or merely the grantor’s rights.”[21] Quitclaim deeds are commonly used by counties for constable’s sales (i.e., sales of tax-foreclosed property). Apart from a constable’s sale, counties should avoid using quitclaim deeds altogether when conveying or acquiring property.
Elements of a deed
Unlike common law, Texas law does not require deeds to contain formal parts or technical language[22] and has minimal requirements for a deed to be valid and effective.[23] However, county practitioners should ensure a deed contains at least the following elements:
• notice of confidentiality rights;[24]
• grantor and grantee names;[25]
• grantor and grantee’s mailing addresses;[26]
• consideration;[27]
• proper legal description of the property;[28]
• reservations;[29]
• exceptions;[30]
• granting clause or operative words of conveyance showing an intention by the grantor to convey the property;[31]
• warranty clause;[32]
• payment of ad valorem taxes;[33] and
• proper execution and acknowledgment.[34]
Certain elements are explained more fully below.[35]
Common pitfalls to avoid
Drafting a deed may seem like a straightforward task. After all, with the availability of online resources, it is easy to find form deeds from which to copy and paste. But even small mistakes or oversights can lead to significant legal problems in the future. Additionally, there is a legal presumption that “parties to a deed intend every clause to have some effect and in some measure to evidence their agreement”[36] and are “bound by every recital, reference, and reservation.”[37] While the law allows for the use of correction deeds, such use is narrow in scope and limited to the correction of facial imperfections.[38] Therefore, county practitioners should be vigilant when drafting and reviewing deeds to ensure that the county’s legal objectives and intent for the conveyance are met.
Some common pitfalls generally involve misidentification and the omission of or failure to consider the legal ramifications of certain language. Misidentification commonly occurs when the drafter fails to properly identify the grantor, grantee, or the property being conveyed. A detailed description of the property is vital to a conveyance.[39] A property description is sufficient if the property can be identified with “reasonable certainty” and described with such particularity that one is able to “locate the specific land being identified.”[40] The description should be more than a mere address, and drafters should be cautious of relying on an appraisal district’s numbered tax tracts or descriptions used for its records.[41] A property description should include either a metes and bounds description for unplatted, acreage property or a lot, block, and subdivision description with reference to a recorded plat. A reference to a prior recorded instrument with either of these descriptions is also sufficient.[42]
A grantor and grantee must also be clearly identified.[43] Along with the full, legal name, recitals may be used to clearly identify the grantor and grantee and the marital status of each (if natural persons). This is especially important in a community property state like Texas.[44] Recitals are a statement of some matter of fact in a deed or contract that explains the reason for the transaction or the manner in which the real property was conveyed. They also help clarify gaps in the chain of title. The following are examples of recitals used to identify a grantor or grantee:
• “Elizabeth Smith, a married woman, dealing with her sole and separate property”
• “Acme Brick Company, a Texas corporation”
• “Jane Doe, the sole heir of John Doe, deceased”
Omitting or failing to consider the legal ramifications of certain language in a deed may cause some unintended or negative consequences, as a deed will pass whatever interest the grantor has in the land, unless it contains language showing otherwise.[45]
A reservation creates a new right out of the property and reserves the grantor’s interest in the property, such as an easement or mineral rights. Reservations cannot be implied and must be made by clear language.[46] Because a county is generally constitutionally prohibited from granting a “thing of value … to any individual … or corporation,”[47] any failure or omission of the grantor to reserve a property interest in the deed (once conveyed to a county) may force the grantor to purchase a subsequent interest in the property pursuant to the statutory requirements governing the sale of county property.[48] In one jurisdiction, the county sought to acquire a 100-acre tract of land from a property owner. The property owner desired to reserve a one-acre parcel and access easement for itself within the 100-acre tract. However, the property owner did not want to delay completing the transaction while awaiting a survey concerning the reservation’s legal description. Assuming the county could merely convey the one-acre parcel and easement back to the property owner, the property owner attempted to transfer the property to the county without mention of the reservation in the deed. In this situation, the county did not accept the deed and delayed finalizing the conveyance until the survey was completed. If this transaction had proceeded as the property owner desired, then the county would be required to follow the statutes governing the sale of county property to convey and sell the one-acre parcel and easement.[49]
An exception is different from a reservation because it either excludes the grantor’s existing property interest from the conveyance or conveys the property subject to certain encumbrances. Failing to consider the legal ramifications of accepting a deed with language subjecting a county to “all encumbrances” including liens, covenants, restrictions, or any other language that conveys anything less than clear and marketable title[50] to a county, is not only contrary to law[51] but also may result in costly litigation. Moreover, accepting a deed subject to all restrictions and covenants may inadvertently subject the county to a Property Owner Association’s (POA) deed restrictions and covenants. This can be problematic when POA dues are assessed against the county’s property or the public purpose for which the county acquired the property is prohibited by the POA’s deed restrictions. However, deed restrictions and restrictive covenants do not apply to governmental entities with the power of eminent domain with respect to property acquired by purchase or condemnation, as such restrictions and covenants limit a governmental entity’s police power.[52]
Omitting language regarding the purpose of the conveyance is another pitfall. This is especially important for right-of-way conveyances. Failing to include any language in the deed regarding the grantor’s right-of-way access or that the conveyance is made for public right-of-way purposes may unintentionally result in land-locking or creating title issues for the grantor or an abutting property owner.
Conclusion
While drafting and reviewing a deed may seem straightforward, it can be a meticulous process that requires attention to detail and a clear understanding of the conveyance being made. Any blunders or oversight can lead to future disputes or have costly and negative consequences. But with careful drafting and avoidance of common pitfalls, you can create a deed that is effective and that withstands legal challenges.
[1] “Real property” means “land and whatever is erected or growing upon or affixed to land.” See San Antonio Area Foundation v. Lang, 35 S.W.3d 636, 640 (Tex. 2000). This is different from “personal property” which is defined as “interests in goods, money, choses in action, evidence of debts, and chattels real.” Id.
[2] In this article, “property” means “real property.”
[3] See e.g. Ruth 4:7-10 (English Standard Version).
[4] Dawson v. Tumlinson, 242 S.W.2d 191, 193 (Tex. 1951).
[5] See William Henry Rawle, A Practical Treatise on The Law of Covenants for Title §38, at 52-53 (5th ed. 1887).
[6] “Title” is the “union of all elements (as ownership, possession, and custody) constituting the legal right to control and dispose of property; the legal link between a person who owns property and the property itself.” Black’s Law Dictionary (12th ed. 2024).
[7] A deed is a “written instrument by which land is conveyed.” Black’s Law Dictionary (12th ed. 2024).
[8] Munawar v. Cadle Co., 2 S.W.3d 12, 16 and 20 (Tex. App.—Corpus Christi 1999, pet. denied).
[9] A “defect” is a claim or encumbrance that affects or impairs a property owner’s title, such as taxes, assessments, liens, mortgages, and judgments. See Tex. Prop. Code §5.024; see also Gordon v. W. Houston Trees, Ltd., 352 S.W.3d 32, 42 (Tex. App.—Houston [1st Dist.] 2011, no pet.).
[10] Munawar, 2 S.W.3d at 16.
[11] Id.
[12] Richardson v. Levi, 3 S.W. 444, 447 (Tex. 1887).
[13] Id.
[14] Geodyne Energy Income Prod. P’ship I-E v. Newton Corp., 161 S.W.3d 482, 486 (Tex. 2005).
[15] Rogers v. Ricane Enterprises, Inc., 884 S.W.2d 763, 769 (Tex. 1994).
[16] Geodyne, 161 S.W. 3d at 486.
[17] Rogers, 884 S.W.2d. at 769.
[18] A cloud on title is any document, claim, lien, or encumbrance which, “on its face, if valid” may impair or injure the title to real property or make title doubtful. See Gordon, 352 S.W.3d at 42.
[19] A suit to quiet title is an equitable court action by which a person claiming ownership of the real property seeks to remove any defects in the chain of title or adverse claims against title. See e.g Sw. Guar. Trust Co. v. Hardy Rd. 13.4 Joint Venture, 981 S.W.2d 951, 957 (Tex. App.—Houston [1st Dist.] 1998, pet. denied).
[20] See e.g., Gordon, 352 S.W.3d at 42.
[21] Geodyne Energy, 161 S.W.3d at 486.
[22] Tex. Prop. Code §5.001.
[23] A valid and effective deed must be in writing, identify the grantor and grantee, contain a sufficient description of the property, include operative words of conveyance, be signed by the grantor, and delivered to and accepted by the grantee (although actual delivery is not required). See id. at §5.021; See also Gordon, 352 S.W.3d at 43; Adams v. First Nat’l Bank of Bells/Savoy, 154 S.W.3d 859, 869 (Tex. App.—Dallas 2005, no pet.); Harris v. Strawbridge, 330 S.W.2d 911, 915 (Tex. Civ. App.—Houston, 1959, writ ref’d n.r.e.).
[24] Tex. Prop. Code §11.008(c).
[25] Id. at §5.021; See also Gordon, 352 S.W.3d at 43.
[26] Tex. Prop. Code §11.003(a).
[27] A contract (such as a deed) must be based on consideration to be valid. See 1464–Eight, Ltd. v. Joppich, 154 S.W. 3d 101, 105-106 (Tex. 2004). Consideration is a bargained for exchange of promises meant to induce the parties to enter into the contract (e.g., money in exchange for the conveyance of land). See id. However, Texas law does not require the parties to a deed to show the amount of money paid and may, instead, recite a nominal amount (e.g., “$10.00”) and “other good and valuable consideration.”
[28] AIC Mgmt. v. Crews, 246 S.W.3d 640, 645 (Tex. 2008).
[29] Combest v. Mustang Mins., LLC, 502 S.W.3d 173, 179 (Tex. App.—San Antonio 2016, pet. denied).
[30] Id.
[31] Gordon, 352 S.W.3d at 43. A granting clause is the grant of the property and generally includes the words “grant, sells, and conveys” (for purchase) or “grant, gives, and conveys” (for a donation).
[32] A warranty clause should be included to determine the type of deed being used.
[33] An “ad valorem” tax is a tax on property at a certain rate based on the value of the property. Texas Mun. League Intergov’tl Risk Pool v. Texas Workers’ Comp. Comm’n, 74 S.W.3d 377, 387 (Tex. 2002). A statement regarding the payment of ad valorem taxes for the current tax year should be included to identify the responsibility of the grantor and grantee for unpaid taxes.
[34] Tex. Prop. Code §§5.021 and 12.001; see also Gordon, 352 S.W.3d at 43.
[35] For the remaining items, please consult the above footnotes for additional information.
[36] Altman v. Blake, 712 S.W.2d 117, 118 (Tex. 1986).
[37] Munawar, 2 S.W.3d at 19.
[38] See Tex. Prop. Code §§5.028 and 5.029; see also Myrad Properties, Inc. v. LaSalle Bank Nat. Ass’n, 300 S.W.3d 746, 750 (Tex. 2009).
[39] AIC, 246 S.W.3d at 645 (Tex. 2008).
[40] Id.
[41] See generally id. at 645-649.
[42] See Morrow v. Shotwell, 477 S.W.2d 538, 539 (Tex. 1972).
[43] See Tex. Prop. Code §5.02; see also Gordon, 352 S.W.3d at 43.
[44] Tex. Fam. Code §5.001.
[45] Tex. Prop. Code §5.001; Combest v. Mustang Mins., LLC, 502 S.W.3d 173, 179 (Tex. App.—San Antonio 2016, pet. denied).
[46] Combest, 502 S.W.3d at 179.
[47] Tex. Const. Art. III, §52(a).
[48] See Tex. Loc. Gov’t Code §§263.001, 263.006, 263.007, and 272.001.
[49] Id.
[50] Clear and marketable title means title that is free from any liens or claims.
[51] See Tex. Loc. Gov’t Code §280.002.
[52] See Tex. Att’y Gen. Op. No. GA-0249 (2004) at 2 (citing to Wynne v. City of Houston, 281 S.W. 544, 544 (Tex. 1926) (per curiam); Deep E. Tex. Reg’l Mental Health & Mental Retardation Servs. v. Kinnear, 877 S.W.2d 550, 560 (Tex. App.—Beaumont 1994, no writ); Palafox v. Boyd, 400 S.W.2d 946, 949-950 (Tex. Civ. App.—El Paso 1966, no writ); and City of River Oaks v. Moore, 272 S.W. 2d 389, 391 (Tex. Civ. App.—Fort Worth 1954, writ ref’d n.r.e). In one jurisdiction, a county acquired a parcel of property to construct a public venue. An adjacent landowner and the local POA informed the county the pending construction violated the deed restrictions and forwarded a cease and desist letter to the county. In reliance upon Texas Attorney General Opinion GA-0249, the county continued with the construction of the venue.