Effective communication between attorney and client can be made more difficult when the general public’s understanding of a term differs from its legal definition, and “deed” is one of the worst offenders. Movies, television, and other media have created a widely shared misunderstanding of what a deed is, what it does, and what the consequences of having one’s name on one are. Thankfully, the truth is less scary than the fiction.
A deed is commonly (and incorrectly) portrayed as a single, supremely important instrument passed from owner to owner that controls the ownership of a piece of real estate. Some understand a deed to be a paper document, fiercely guarded by its owner, that can be stolen or destroyed. Others understand it as an entry in a record book or database that binds a property to an owner in the eyes of the government. Both conceptions of a deed hinge on a fundamental misunderstanding: that there is “a deed” for a given property, or that one can put their name on “the deed” for a property.
In truth, most properties have many deeds associated with them, none of which are particularly important to possess. A deed is simply a tool for the owner or owners of a property to give or sell that property to someone else.
In simple terms, a deed is defined in Texas as a written instrument that (1) identifies a property, (2) identifies the party or parties to whom the owner intends to transfer the property, (3) states that, by signing the document, the owner intends to give their ownership of the property to the recipient(s), and (4) is delivered by the owner to the recipient. Tex. Prop. Code § 5.021. For the signed deed to be recorded in the real property records of the county in which the property is located – which makes it a public record and is the best practice in virtually all cases – the deed must also be notarized (or legally validated in other specific ways which are very rarely used). Id. § 12.001.
In most cases, a new deed is created and delivered whenever legal ownership of a property voluntarily changes hands between living parties, and the delivery of the new deed from the current owner to the new owner is what makes the transfer “official” in the eyes of the law. What happens to the deed after that is of little importance. In that sense, a deed has more in common with the receipt for the cheeseburger you bought on your way home than it does with its media portrayal.
When a layperson consults an attorney for assistance with the deed to a property, they are probably concerned about ownership. If they need to “add my spouse’s name to the deed,” they really mean that they want to share ownership of the property with their spouse. If they are concerned that their brother has “added his name to the deed” for their parents’ house, they are concerned that their brother has wrongfully done something to claim or give himself ownership of a house that belonged to their parents. An experienced real estate attorney will have both the legal and day-to-day vocabulary to determine how to assist a client who says they need help with a property’s deed.
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