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Deeds and Conveyancing

Author: Craig Galanter

Contributing Editor: Harrison Long

Conveying property is not as simple as filling out a pre-made form deed online. Many mistakes can be made, and while some are easily correctable, others are not. Because of the intricacies of deeds and recording, it is important to speak with an experienced real estate attorney to make sure real property is correctly conveyed the first time. Below, we will examine deeds and conveyancing.

First, let’s look at what is a deed. A deed is a legal instrument, in writing, duly executed and delivered, whereby the owner of the land (the grantor) conveys to another (the grantee) some right, title or interest in or to the real estate.

It is important to choose the right deed for your intended purpose. Choosing an incorrect deed could have serious consequences down the line. Colorado has five major types of deeds. These deeds are statutorily defined. The difference between these deeds is in the degree of protection or guarantee that the grantor promises or warrants to the grantee:

  1. General Warranty Deed: The grantor warrants the title to the real property against any defects existing before the grantor acquired title as well as during the time of the grantor’s ownership. C.R.S. § 30-30-113
  1. Special Warranty Deed: Warrants title only against adverse claims asserted by someone whose interest is claimed to have been derived from the grantor. C.R.S. § 38-30-115.
  1. Bargain and Sale Deed: Conveys the real property as well as any after-acquired title thereto but contains no guarantees or warranties of title. C.R.S. § 38-30-115.
  1. Quitclaim Deed: No warranties. This deed conveys whatever interest the grantor has in the property. C.R.S. § 38-30-116.
  1. Confirmation Deed: In a few limited situations (i.e. death, foreclosure), title passes by statute to designated grantees and a deed is required to evidence transfer of title on the public record. C.R.S. 38-38-501.

Each deed is made up of four distinct parts: “premises,” “habendum clause,” “warranties,” and “testimonium.” While it is not essential to date a deed, it is good practice to do so because it may and likely will prevent future questions concerning when the deed was delivered.

Premises: This section contains the names of the parties involved (the grantor/grantee), the consideration involved, the granting clause, and the description of the property being conveyed.

Here, it is important to note how title will be taken. According to C.R.S. § 38-31-101, a conveyance to two or more persons creates a tenancy in common unless the document states that the grantees shall hold the property as “joint tenants” or in “joint tenancy.”

Habendum and Warranties Clause: This clause is more commonly referred to as the “to have and to hold” clause.

Testimonium: This section is comprised of the grantor’s signature and the acknowledgment.

Once your deed is finalized, the final step is protecting your investment by recording the deed into public record – this is done with the office of the county clerk and recorder of the county where real property is located. By doing this, the purchaser is preserving the chain of title (ownership history) and will help reduce the likelihood of title claims against future purchasers. Failure to record may create a series unintended consequences such as making it nearly impossible to sell the real property, refinance a mortgage or can make it difficult to prove that you are the true owner of the property, especially, if someone else records a deed for the same piece of real property.

The real estate attorneys at Kearney, McWilliams & Davis can help answer any questions regarding which deed is appropriate for your transaction and can also make sure your deed is executed correctly to avoid corrections down the line. Here you can find information regarding correction deeds.