Deeds, deed types, and Florida's witness rule
A deed is the written document that transfers title to real property. The owner giving title is the grantor; the person receiving it is the grantee.
Elements of a valid deed
Details vary from state to state, but the core elements are:
- In writing. Real property conveyances must be written.
- A competent grantor, legally able to contract (of legal age and sound mind).
- An identifiable grantee. The grantee must be a real, identifiable person or entity. The grantee does not need to be competent; a minor can receive title.
- Words of conveyance, also called the granting clause, showing intent to transfer ("grant and convey").
- An adequate legal description of the property. A street address alone is not enough.
- Consideration. Something of value, often stated as a nominal amount. The amount does not matter for validity.
- The grantor's signature. The grantee does not sign.
- Delivery and acceptance.
Delivery and acceptance
Title passes only when the grantor delivers the deed with the intent to transfer title now, and the grantee accepts it. A deed signed and kept in the grantor's desk drawer, to be handed over "when I die," transfers nothing while the grantor lives. Delivery can be made to the grantee, to the grantee's agent, or to an escrow agent with instructions to release it when conditions are met. Acceptance is usually presumed when the transfer benefits the grantee, such as when the grantee records the deed.
Florida's witness requirement
Under Fla. Stat. 689.01(1), an instrument that creates or conveys an interest in real property must be signed in the presence of two subscribing witnesses by the party conveying it, or by that party's lawfully authorized agent. A few points from the same subsection:
- Leases are the exception: no subscribing witnesses are required for a lease of real property.
- No seal is needed for the instrument to be valid.
- Transfers by will follow the law of wills instead.
Under 689.01(2), witnesses may be present and sign electronically through audio-video communication technology.
Types of deeds
The main difference between deed types is how much the grantor promises about the title.
| Deed | What the grantor promises | Typical use |
|---|---|---|
| General warranty | Warrants good title against defects from any time, and promises to defend it. Gives the grantee the most protection. | Most residential sales |
| Special warranty | Warrants only against defects that arose during the grantor's ownership. | Commercial sales; sellers who do not want to vouch for earlier owners |
| Bargain and sale | Implies the grantor holds title, but makes no express warranties against encumbrances. | Some foreclosure and tax sales |
| Quitclaim | No warranties at all. Conveys whatever interest the grantor has, if any. | Clearing a cloud on title, transfers between family members or divorcing spouses |
| Fiduciary (personal representative's, trustee's, guardian's deeds) | Given by someone acting for another person or an estate. Usually warrants only that the fiduciary acted within its authority. | Selling property from an estate or trust |
A cloud on title is a claim or gap in the record, such as a possible interest held by an heir, that makes title uncertain. A quitclaim deed from the person who might hold that interest is a common way to clear it, because that person gives up any claim without promising anything.
Exam tip: the more warranties a deed has, the more protection the grantee gets. General warranty is the most; quitclaim is the least.