Determining whether a deed is void or voidable is critical when determining the validity of the conveyance and the best procedure to challenge the instrument. A deed is defined as either void or voidable at the time that the deed is executed and delivered. A deed is a type of contract, and if a contract is void, it holds no obligation for either party involved. It is a nullity; it conveys no rights or property and has no legal impact for either party. It cannot be ratified although it can be set aside at any point by a quiet title action or an ex parte motion under the Texas Government Code. By contrast, a contract that is voidable remains enforceable until the person with the right to void the contract takes the necessary steps to negate it. A voidable contract may also be ratified or confirmed at a later point. See Wood v. HSBC Bank USA, N.A., 505 S.W.3d 542 (Tex. 2016). Â It may also be set aside in the event of proven fraud.
While a deed may seem straightforward on the surface, it may not actually convey property as it is designed to do. For example, a deed cannot legally confer property if the person conveying that property obtained it fraudulently. It cannot convey property if the grantor is somehow unable to execute the deed, due perhaps to injury or death. Wall v. Lubbock, 52 Tex. Civ. App. 405, 118 S.W. 886 (1908, writ refused).
The parties may disagree about the terms of a deed, but disagreeing itself is not enough to rescind a deed, assuming that negligence of a party is not the cause of their disagreement. When proof of fraud is the reason that parties disagree, the deed can then be put aside. Oar v. Davis, 135 S.W. 710, 712 (Tex. Civ. App. 1911), aff’d, 105 Tex. 479, 151 S.W. 794 (1912). Gibson v. Brown, 24 S.W. 574 (Tex. Civ. App. 1893, no writ). If a deed is voidable, it is accepted as valid proof of the existence of title until evidence proves otherwise. When a voidable deed is proven to be fraudulent, it is no longer legally binding and provides no evidence of title. Orca Assets, G.P., L.L.C. v. Dorfman, 470 S.W.3d 153 (Tex. App.—Fort Worth 2015, pet. denied) (2 pets.).
Conveying property from one person to another is not a simple matter, and failing to understand whether or not a deed is voidable can result in costly, time-consuming mistakes. Working with an experienced real estate lawyer is the best way to protect real property assets.
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