What Is A Quit-Claim Deed?
By Cody M. McCaughan, Esq.
What is a quit-claim deed?
Quit-claim deeds are commonly used deeds that transfer the rights in a property that is done without a formal title review or search. They are often quick, efficient, cheaper to draft, execute, and record than a formal sale of property that utilizes a warranty or special warranty deed. Verification of the grantor, the existence of liens and encumbrances, or any potential tax implications are not revealed in the process of obtaining a quit-claim deed. Quit claim deed transfer the rights in which a grantor has at the time the property is conveyed, giving a greater amount of risk for the grantee should there be an issue or “cloud” in title.
What is the difference between grantor and grantee?
The grantor is the person who is transferring the property, and the grantee is the person who is receiving the property.
When should you use a quit-claim deed?
Most often, individuals transfer their own property to their respective limited liability company (“LLC”) or living trust. A dissolution of marriage or marriage settlement agreement may generally call for one ex-spouse to quit-claim marital property to the other. Other circumstances that warrant a quit-claim deed are when the grantor wishes to transfer interest in the property from community property to joint tenancy, from single ownership to co-ownership, or from one co-owner to another. You cannot make a quit claim deed effective after your death. This is achieved via a “lady bird” deed.
What are the requirements of a quit claim deed?
Florida Statutes Section 695.26 govern the requirements for recording instruments affecting real property. A quit-claim deed should be filed with the clerk of the court in the county where the property is located. The clerk of the circuit court will reject recordation of quit-claim deeds if the following elements are not met: (1) name and address of the person who prepared the document; (2) name and address of the grantor; (3) name and address of the grantee; (3) signature of the grantor(s); (4) signature of two disinterested witnesses for each grantor; and (4) notary acknowledgment. Fla. Stat. § 695.26 (2021). It is important to note that the clerk can accept a properly executed deed for recording, however, this neither guarantees nor means that the county checked for legal accuracy in the substance of the document.
What if the property has a mortgage?
Where a debt is not assigned or satisfied, a quit-claim deed does not convey any right since the mortgagee had a lien upon the property which lien is inseparable form the debt which the mortgage is given to secure. Hemphill v. Nelson, 95 Fla. 498, 116 So. 498 (1928). Meaning, if the loan debt is not assigned or satisfied, the mortgage and loan do not transfer with the quit-claim deed. So long as the payments are being made on the mortgage, the lender generally will not raise an issue. Quit-claim deeds are more often than not transfers of rights to one’s own LLC or family members, so individuals continue making payments despite changing ownership.
What taxes are due for the conveyance of a property using a quit-claim deed?
Contrary to popular belief, documentary stamp taxes are usually due on the conveyance of real property using a quit-claim deed. However, there are exceptions that may exempt the parties from having to pay these taxes in some transactions where quit-claim deeds are typically used. It is important to consult with a real estate attorney to determine if you qualify for an exception.
What are the disadvantages of a quit-claim deed?
A grantee who takes property via quit-claim deed has no guarantee that the grantor had clean and clear title at the time of conveyance. If this happens to be true, the grantee generally has no causes of action against the grantor. It is important to refrain from self-help websites and templates and consult with counsel of an attorney when seeking to transfer property rights via quit-claim deed legally and effectively. When done properly, quit-claim deeds are an efficient way to change ownership and give interest in property.
Our firm has the experience and support to prepare and have quit-claim deeds executed legally and efficiently. For a no-charge consultation, including a quote for attorney representation and document preparation, contact us at (305) 928-4190.