Skip to main content

Real estate documents

There are several real estate documents that may be required when buying or selling property, including a purchase agreement, property disclosure and deed.

Cody Malloy McCaughan | Oct 9, 2019

What You Need to Know About Quiet Title Actions

What is Title? You either own a property or you don’t, right? Not exactly. If your name is on the deed, you are the record title holder, however, there are many different types of ownership of real property, all with different rights and claims. For example, when you give a mortgage over your house to a bank, it gives them certain rights. They do not have the right of possession, i.e., an employee from the bank cannot walk into your home and open up an office, nor do they have the right to sell your property. But they do have a right to force you out if you stop making your mortgage payments, or to file a lawsuit to prevent you from damaging or destroying the property, because the value of your property is what secures their loan. This is just one example of the multitude of different rights an individual or business may have over real property. In reality, most properties are owned, liened, or otherwise encumbered by multiple persons or businesses. How are Properties Titled? In addition to the various interests in real property that exist, real property can also be titled in many different ways: individually, jointly, through a business entity, or through a trust, just to name a few. This adds another layer to the complex nature of determining who has a claim to a property, and what rights they may have. What is Marketable Title? When a property is sufficiently clear of title issues to sell on the open market, the record owner is said to have “marketable title” to the property. When a property is involved in a title dispute, foreclosure, or it is otherwise not clear who owns the property after an examination of the property records, it is often said that there is a “cloud on title”. Properties with a cloud on title are very difficult to sell because title insurance companies will not issue a policy protecting the buyer of the property, making them very risky investments. If marketable title cannot be achieved through additional deeds, or other title instruments, being recorded in the property records, then a quiet title action becomes necessary. Fixing Title Issues Title issues are extremely common, however most can be resolved relatively quickly and easily. Every time a parcel of real property is being purchased, the closing agent will have a title search performed on the property, which almost always reveals one or two title issues that need to be resolved. After the appropriate documents are drafted and executed to the satisfaction of the title insurance company, the title issues are considered cured or avoided, and the buyer may then purchase the property with a title insurance policy protecting their investment. But on occasion, major defects arise in the ownership history of the property, known as the chain-of-title, resulting in the necessity of a quiet title action. Resolving Title Disputes While title issues and defects are fairly common, sometimes a parcel of real property becomes involved in full-blown title disputes. Title disputes arise when two different individuals or entities assert ownership, or some other major property right, over the same parcel of land. Often these disputes arise out of issues with fraud, or disagreements among family members, that affected the transfer or conveyance of the real property. If the parties cannot agreement on a resolution, then a quiet title lawsuit may be the only way to determine the true owner of the property. How long will it take? How much will it cost? The good news is that quiet title actions are not contested, meaning there is a title defect that needs to be cured, but no one else besides the record owner is claiming a real interest in the property. However, these uncontested quiet title actions are still lawsuits that must be researched, drafted, filed with the court, and carried through to a final judgment. While every case is different, a diligent attorney can probably complete an uncontested quiet title action in approximately three months. If a quiet title action is contested, meaning that another party joins in the lawsuit and hires an attorney to fight for ownership of the property, then there is absolutely no way to predict how long the case will take. Depending on the parties willingness to settle, or lack thereof, the matter can sometimes take years to complete. Most attorneys will charge a standard retainer to begin a quiet title action. While individual circumstances vary, the initial retainer will probably be in the range of $2,000 to $5,000. If the action is uncontested, this retainer may be sufficient to cover the entire lawsuit through final judgment. If the action becomes contested, attorney’s fees can easily reach tens of thousands if the parties are not able to workout a resolution.

Joseph Benjamin Battaglia | Apr 23, 2018

Quitclaim Deeds in Florida: an Overview

What they are. A quitclaim deed (or quit claim deed, but not "quick claim deed") is a type of deed. A deed is an instrument by which an interest in real property (land) is conveyed from a grantor to a grantee. There are a variety of different types of deeds used in Florida, but perhaps the most defining characteristic of the quitclaim deed (versus the others) is that it comes with no representations, warranties, or guaranties of any sort. What they are not. Compare the above with other types of deeds in Florida, such as the statutory warranty deed or the special warranty deed, which, as their names imply, do contain certain warranties. One of such warranties (absent in quitclaim deeds) is that the grantor holds legal title to the property being conveyed and has the capacity to convey the property. So by contrast, a quitclaim deed is, simply, an instrument by which a grantor says to the grantee, "Whatever interest I have in this real property, I am giving to you. I may own half. I may own nothing. There may be liens. The property could be in foreclosure. But here you go. Enjoy." Their usefulness. Because of the lack of warranties, generally, a quitclaim deed should not be utilized as the conveying instrument in an arms-length purchase/sale transaction in which a buyer is paying good consideration (money, etc.) to a seller for the property. Any such buyer should want all of the customary recitals/warranties/representations contained in, let's say, a general warranty deed. Nevertheless, quitclaim deeds can still be useful in some situations. These can include conveyances among family members (perhaps when no consideration is given), to correct or cure defects or deficiencies in title, for estate planning purposes, and sometimes even to settle litigated matters involving land. There are certainly other situations in which a quitclaim deed could be utilized and also note that any of the above-mentioned situations are highly dependent on the facts of a given matter. As such, there is, unfortunately, no one-size-fits-all situation in which a quitclaim deed can or should be utilized. What is a grantor or grantee to do? If parties to a land transaction are at the point when they are trying to figure out specifically which conveying instrument is to be used, they should back up and consult with a qualified attorney, such as a Florida real estate lawyer. This is because, more important than the question of whether a quitclaim deed should be used, the attorney will be able to advise the parties as to aspects of the conveyance that may otherwise be ignored when parties prepare their own documents. These can include aspects such as liability for the payment of documentary stamp tax, and how title should vest when there are multiple grantees. Also, because tax and medicaid planning aspects can apply in some situations, a qualified estate planning attorney should also be consulted with in most instances. Disclaimer: The content of this guide is intended to convey general information only and it should not be relied upon as legal advice. It is not an offer to represent you, nor is it intended to create an attorney-client relationship.