In legal terms, conveyancing refers to transferring the title of real property from one person to another. A conveyance occurs when the owner of real estate transfers the ownership of that property to another party. This could be a home, or some other property such as commercial real estate. A conveyance can occur in full, or the owner may choose to transfer only a portion of the ownership interest.
Conveyances may occur in many different ways, including but not limited to:
- Through a sale of the land or property;
- Through transfer as a gift; or
- By inheritance, such as through succession laws.
In general, statute of frauds laws require that any type of real estate sale is to be recorded in a written contract. Thus, a conveyance of title to real estate must be in writing if it involves a sale. This is to help avoid any disputes or breaches of contract in the future, as well as to establish the legal owner of the property for other purposes, such as taxes.
The owner of the property, or the “grantor,” must utilize words of conveyance in order to transfer an interest in property to the person receiving the property, or the “grantee.” Words of conveyance show the intent to transfer the title of a parcel of real property and are typically required by law, although the exact words required may vary by jurisdiction.
Transfer of the actual, physical deed does not need to happen, so long as the person clearly expresses their intention to make the conveyance. The deed itself must be written, signed, dated, and should contain a description of the land being transferred. Additionally, in order for a valid conveyance to occur, there should be no title defects, such as an improperly recorded title.
In general, there are four main types of real property conveyances. Variations do occur within the four main types of conveyances. However, courts will not typically recognize the transfer if the language of the conveyance does not fit within one of the four main categories.
Below is a list and description of the four categories of conveyance:
- Fee Tail: Fee tails are intended to preserve the estate in the bloodline of the person receiving the property. Thus, only the children of a fee tail holder will benefit from the fee tail. Once the holder of a fee tail dies without leaving behind any children, both the bloodline and the fee tail end, and the property returns to the original grantor. Fee tails are a type of conveyance that transfers an interest in real property to another, but restricts any further sale or transfer of the property. Fee tails are also referred to as restraint on alienation, and are abolished in nearly every state. Only Delaware, Massachusetts, Maine, and Rhode Island still recognize fee tails;
- Fee Simple Absolute: A fee simple absolute is a conveyance of real property that gives absolute ownership in the property. The holder of a fee simple has both the present and future interest in the property. The duration is indefinite, and the interest is not subject to any specific conditions. At any time, the holder may sell all or part of the property, or distribute the property at their death through a will. These rights are commonly thought of as simply ownership of the real property, and is the most broad category of property interest;
- Life Estate: Life estate refers to an interest in property that is measured by the duration of someone’s life, typically the person who is to receive the property. Once the life tenant dies, the property is transferred to the person who holds future interest. A life tenant is generally entitled to all uses and profits from the property; however, the life tenant does not maintain any rights to transfer the property when they die. As such, they do not have the right to commit waste (acting in any way that would cause the property to lose value, neglecting the premises, etc); and
- Fee Simple Defeasible: A fee simple defeasible conveyance may have certain conditions or limitations placed on the transfer of property. If these conditions are violated, or are not met, the property either goes back to the original grantor, or a specified third party. There are three different types of fee simple defeasible:
- Fee Simple Determinable: The interest in the property is automatically ended when a condition is violated or unmet;
- Fee Simple Subject to Condition Subsequent: Transfer where the violation of the condition would give the original owner of the property the option to take back the property; and
- Fee Simple Subject to Executory Limitation: This conveyance confers a future property interest to a third party, not the original owner.
In short, yes, conveyances of property may be disputed. Disputes over real property and the conveyance of real property occur frequently, especially when the grantor fails to provide clear and legal words of conveyance. Some examples of common conveyance disputes include:
- Attempts to convey property that the grantor does not actually, legally own;
- Will or trust disputes;
- Issues with defective or improperly recorded titles, as previously mentioned; or
- Conveyances based on fraud or deceit.
If a conveyance, or failure to convey, results in a measurable loss, legal action may be taken. Examples of remedies include damages awards and court injunction, such as an order that requires the defendant to transfer the title to the property’s buyer.
A skilled and knowledgeable estate attorney may prove to be an invaluable asset when conveying property to another person. An experienced estate attorney will be knowledgeable about your state’s specific property laws, and will be able to assist you in drafting any necessary real estate contracts. Additionally, they will be able to represent you in court, should any disputes arise.