What Is the Difference Between a Title and a Deed in Florida?
A title is the legal right to own and use a property. A deed is the written instrument used to convey an interest in real property and is evidence of the transfer. Recording the deed places it in the public records. One person or several can hold title, and some deeds carry title warranties while others do not.
Aaron Resnick reads the deed and the title search together before he advises on a transfer or a dispute.
While holding title and a deed to property may seem like the same thing, they are actually two different legal concepts.
Titles are the concept that you have ownership rights to a specific property. How you take title matters when there is more than one person taking title because it impacts your rights when you want to sell it or transfer it to another person if something happens to you.
Deeds are the physical evidence of who has title to what specific property, but there's more than one type of deed. Some deeds provide warranties while others do not.
Titles Defined
When you discuss title to a property, you are referring to an individual's right to use and own that property. When you hold title, you have legal rights and responsibilities to that property. Titles can be held by individuals, and they can be held by more than one person. For example, a married couple can both hold title to the same property. Corporations, partnerships, organizations, and trusts can also hold title to property, granting the respective parties rights of ownership and responsibility of the same property. In sum, titles are a concept and represent the legal right to use and modify the property, and that legal right can be attached to more than one person or entity.
Because more than one person or entity can hold title to the property, when a person purchases real estate, they want to conduct a title search to ensure the title is clean. A title is clean when there are no liens or encumbrances attached to it. Many parties to a real estate transaction in Florida will purchase title insurance. This is insurance that indemnifies or protects against financial losses in cases where there are defects in the title. When a dispute regarding ownership and title arise, a quiet title action is performed.
Deeds Defined
A deed is a physical legal instrument that records the sale or transfer of property. It must be executed pursuant to the laws of the jurisdiction of where the property is located. A deed is executed by the grantor who is selling or transferring the property to the grantee who is buying or receiving the property. The deed provides evidence of who has title to the property.
When the grantor transfers property during a real estate transaction, three common deed forms are a general warranty deed, a special warranty deed and a quitclaim deed:
Each deed type represents the extent or knowledge of title to any specific property.
How Can Two or More People Take Title to Florida Property?
Two or more people in Florida commonly take title as tenants in common, as joint tenants with the right of survivorship, or, for a married couple, as tenants by the entirety. How title is taken controls each owner's rights, including what happens to a share on a sale or at death.
Aaron Resnick checks how title was taken before he advises on a sale, a transfer or a dispute between co-owners.
You take title when you acquire real estate either by a transfer or sale. If you will share title, your rights and responsibilities per that title depend in large part on how the title was taken. Three ways to take title are described below.
1. Tenants in Common
Tenants in common mean more than one owner exists, and each has an undivided interest in the property. That undivided interest, however, does not need to be equal. One owner can have 25% interest while the other has 75% interest. Each owner can convey or gift their interest in the property without the consent of the other owner. A tenant in common's share does not pass automatically to the other co-owner. It passes through the deceased owner's estate.
Generally, unmarried people take title of property this way.
2. Joint Tenants with the Right of Survivorship
Joint tenants with the right of survivorship mean more than one owner exists, and each has an undivided and equal interest in the property. When one owner dies, their share automatically goes to the other owner. Because it is automatic, probate is avoided.
Unmarried couples and family members often take title this way.
3. Tenants by Entirety
Tenancy by the entirety is a distinct form of ownership available to married spouses and includes a right of survivorship. When one spouse dies, the property passes to the surviving spouse without probate.
What Is a Quiet Title Action in Florida?
A quiet title action is a lawsuit asking a court to decide who owns a property and to clear other claims against it. It is used for technical defects in the chain of title and for disputes over who owns the property.
Aaron Resnick reviews the chain of title and the competing claims before he recommends a quiet title action.
Whenever there is a dispute as to who owns a piece of property, and whether or not there is anyone else with a claim on the property, a quiet title action can clarify ownership.
Problems that may be addressed in a quiet title action include technical defects and questions of ownership.
A Technical Defect With Title
When real property is bought and sold, there is a title search performed which summarizes the information available on the public record about the property. The scope of a title search depends on the transaction and the issue being examined.
Information on a title search includes:
- Property taxes
- Mortgages
- Liens
- Easements
If there is a problem with the title, it should be discovered in a title search. Issues are sometimes found in these searches that make the title technically deficient, although no one is challenging ownership.
For example, let's say a developer is buying a large tract of land currently owned by a person whose family has had ownership of the property for many years. At some point in the chain of title, the legal description of a deed did not include part of the tract. Subsequent deeds did include the deleted tract. No one disputes that the deletion was an error, but the developer wants to ensure there are no problems in the future. A quiet title action is likely the best route to take.
These types of quiet title actions are usually not challenged and are settled quickly.
A Dispute Regarding Property Ownership
When an action is filed to quiet title, the complaint will name any and all parties that could possibly claim an ownership right to the property. This is necessary so they can be put on notice of the action. If they feel that they have an ownership interest, they can assert that interest or be forever barred from doing so.
For example, let's take the same scenario as before, but instead of there being a problem with the legal description, the problem is that at one point eight siblings inherited the property from their parents, but only seven signed the deed conveying the property to the next owner in the chain of title. Many years have passed, but the developer wants to make certain no one can later claim that they are part owner of the property. A quiet title action should be able to resolve this issue, but it may be challenged by the eighth child.
What Are the Types of Deeds in Florida?
Three common deed forms in Florida are a general warranty deed, which carries the broadest promises about the title; a special warranty deed, which promises only against problems arising during the grantor's ownership; or a quitclaim deed, which makes no promises about the title.
Aaron Resnick matches the deed to the deal, because the wrong deed can leave a buyer without the protection the contract assumed.
A deed transfers real property from a grantor to the grantee. There are three main types of deeds: the general warranty deed, the special warranty deed, and the quit claim deed.
General Warranty Deeds
When a grantor signs a general warranty deed, they make broad promises, or covenants, regarding the title of the land to the grantee. The grantor agrees to protect and defend the grantee should any other person or entity later claim to have an interest in the property. This type of deed is most preferred by grantees simply because it offers the greatest protection.
Special Warranty Deeds
In a special warranty deed, a grantor offers limited protection to the grantee. The grantor is stating that since they have had the property, they have neither negatively affected the property nor created a defect on the title. This deed does not offer a buyer as much protection as the warranty deed does. Special warranty deeds are common to transfer bank-owned or foreclosed properties.
Quitclaim Deeds
With a quitclaim deed, the grantor is saying that they are transferring to the grantee any interest they currently have in the property. They make no guarantees or promises regarding the quality of the title, so if there is a lien against the property, it will remain with the quitclaim deed. Because there are no guarantees, this type of deed is rarely used when money is exchanged but is most often used when the grantor and grantee know each other. For example, parents may want to add their children to the deed. In this case, they may want to change the way they took title from Tenants by Entirety to Joint Tenants.
When Should I Call a Real Estate Attorney About a Title or Deed Problem?
Call before you sign a deed, add a name to title or accept a title commitment, and as soon as a cloud on title, a missing signature or a competing ownership claim appears. Early review lets the right deed be recorded before a sale, a refinance or a death tests it.
Aaron Resnick reads the deed, the title search and the recording before he advises either side.
Send the parties, the problem and the next date; the firm reviews every inquiry and tells you whether it can help.
We Don't Make Promises. We Have Results to Prove It.
Aaron Resnick has handled business disputes in Miami since 1998 and is a fourth generation Miami attorney. He works hands-on on every case; the client gets Aaron on every major litigation issue, not a junior partner. The Law Offices of Aaron Resnick represents property owners, buyers and sellers in Miami Dade, Broward and Palm Beach counties and across Florida in title, deed and quiet title disputes. Call 305-672-7495 or request a consultation.
This page provides general information and is not legal advice. Prior results do not guarantee or predict a similar outcome.
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