What is Needed to Transfer a Deed in Texas?
Most Texas property deeds have the same general requirements to complete the transfer of a deed from one person or entity to another.
Keep in mind, some Texas specific deed requirements differ from the requirements of other states.
Basically, to transfer a property title deed in Texas, you will need a properly prepared deed as follows:
Change Name on Property Title Deed
To start with, it is helpful to understand how the parties are identified on the deed used to change the name on a property title.
- A Grantor is the person who is selling, transferring or granting title of the property to the new owner.
- The new owner is the Grantee. This is the person buying or receiving title to the property.
Good to know: There can be as many Grantors or Grantees as are necessary. There is no limit. However, most county clerks will charge an extra fee if there are more than 5 new owners.
The deed needs to provide the full name of the current owner [Grantor].
The current owner’s name [Grantor] must match exactly the name of the current owner as shown in the county deed records. For example, if the current owner’s middle name is on the current deed, the middle name should be on the new deed. It is very important that the names match exactly.
Good to know: In most cases, the Grantor in the new deed should be the same person that is named as the Grantee in the prior deed unless that person is deceased. If that person is deceased, you may need an Affidavit of Heirship, a probated Will or similar court order.
Verify the Grantor’s Identity
Because identity fraud is very common these days, proper identification is required to verify the identity of the person signing the document. The notary should require a government issued photo identification before notarizing the document.
The document needs to be signed by the current owner [Grantor] of the property in front of a notary public to prevent identity theft and title theft. This is required by law.
Good to know: It is the duty of the notary to verify that the person signing the document is the person whose name is on the document. However, it is not the notary’s duty to conduct a title search or to verify the person signing the document really owns the property.
The full name of the current owner [Grantor] on the new deed must match that person’s photo identification.
Good to know: If the name of the owner on the current deed and on the photo ID do not match, you may be able to use the phrase “also known as” or “aka” or “formerly known as” when there has been a legal name change, such as with a divorce. Alternatively, you may need to use an Affidavit.
If the current owner’s name has been legally changed, you may want to file a deed showing the name change. A Warranty Deed transferring the property from “old name” to “new name” can be used. This should be done as soon as possible after the name has been changed before you lose your photo-identification with your old name on it.
One and the Same Affidavit
Proper spelling of the current owner’s name is required to maintain the chain of title for the property. The name of the person signing a deed must match the name on the current deed in the property records. If it does not, you may need to file a One and the Same Affidavit explaining why the names are different.
A One and the Same Affidavit or an Identity Affidavit may be used in Texas when the current owner has changed his or her name or when there was an error in the spelling of the current owner’s name in his or her deed. This is a common problem.
If the current owner’s name was spelled wrong in his or her deed, that person may need to sign an Identity Affidavit stating that he or she is “One and the Same” person. The affidavit needs to state that his or her name was spelled wrong. This can only be used for minor changes, however.
When filed in the county records, the Affidavit should complete the chain of title to the current owner.
Affidavit of Heirship
Another commonly used Affidavit is an Affidavit of Heirship. This document is used to identify the heirs of a deceased property owner to complete the chain of title from the deceased owner to his or hers heirs.
An Affidavit of Heirship may be used when the person whose name is on the current deed to the property is deceased. This property is commonly called “Heir Property”. A properly prepared Affidavit of Heirship should legally identify the heirs of the deceased owner so that the heir property can be transferred.
Whose Address Should be on a Property Deed?
Generally, the address for the current owner [Grantor] who is transferring the property is not required to be put in the new property deed. In most cases, the current owner transfers the property and moves to another property and that person’s address changes.
Good to know: If the current owner is reserving a vendor’s lien, a life estate, a mineral interest, or other interest in the property, it is recommended that the current owner’s address be included in the deed.
On the other hand, the Grantee’s mailing address must be in the deed. A mailing address is required. This is the address to which tax invoices will be sent. If there is a problem with the property, this will be the address to which the city, county or state will send notices.
As the new owner of the property, the Grantee will be responsible for the property and the county needs to know that person’s mailing address. The address can be a post office box. Most county tax offices will not send tax bills to addresses outside of the USA.
Note: If the Grantee’s mailing address changes, the Grantee should notify the tax office of the new address, but you are not required to file a change of address with the county clerk.
Terminology in a Property Deed
It is helpful to familiarize yourself with the terminology used in property deeds.
All property deeds need to name a Grantor, Grantee, and Property Description.
Furthermore, all deeds need to state a Consideration which is the reason for the transfer.
A description of the property being transferred must be stated. Ideally, the property description used in the prior deed should be used in the new deed exactly with no substantial changes. If the property is being subdivided, a survey and permission from the county tax office may be required.
A deed should have a paragraph titled: Reservations from Conveyance. The deed should also have a paragraph titled: Exceptions to Conveyance and Warranty. This is where the grantor lists the items that are being excluded from the Warranty of title.
The law requires all real estate deeds to have what is called “Consideration” in order to be valid and enforceable. Consideration is what is given for the transfer of the property. The consideration may be a payment of cash, a providing of services, or a gift. Something needs to be stated as consideration.
Good to know: Most deeds state that the Consideration is “$10.00 cash and other good and valuable consideration received.” Legally speaking, this means that the seller received at least $10 before signing the deed.
This sentence is used so that the full amount paid for the property is not put in the public records for everyone to see. It is also used to show that the transfer of the property is not a gift. Gifts may require the payment of a gift tax.
This phrase is for the privacy of the Seller and Buyer. The full amount paid for the property is not required to be stated in the Deed.
Consideration can be money paid in the past, present or future. It can also be services provided in the past, present or future. Regardless of what or when it is paid, there must be some consideration to prevent the transfer from being considered a gift.
The deed may state that the consideration is “Love and Affection” or similar words if the property is a gift, or it can simply state “Gift” as the consideration if it is a charitable donation.
Good to know: Gift Deeds may require gift taxes. Be sure to consult your tax advisor before making a gift transfer.
Note: If there is a mortgage used to purchase the property, the mortgage company will usually require the amount of the mortgage to be stated in the consideration portion of the deed so that the mortgage company’s lien is noted on the deed.
Reservations From Conveyance
The property deed should contain a paragraph for the Grantor to specify any Reservations from Conveyance. In most deeds, the word “None” is stated in the paragraph. However, the most common Reservations from Conveyance include a vendor’s lien, mineral rights or a life estate.
The most common reservation is a Mineral Reservation, which means the Grantor/Seller is keeping or reserving the Mineral Rights to the property.
Good to know: The phrase “Mineral Rights” includes “all oil, gas and other minerals in, on, or under the surface of the property.”
If the Grantor wants to keep the oil and gas rights, a Mineral Reservation should be in the Reservations from Conveyance paragraph of the deed to retain the mineral interest.
Unless the Grantor reserves mineral rights, any mineral rights owned by the Grantor are automatically transferred to the Grantee.
If any portion of the property is financed, either by the Grantor/Seller or a mortgage company, there is usually a Vendor’s Lien reserved in the deed. A Vendor’s Lien is used to secure the promise to pay for the property.
Another common Reservation in a deed is a Life Estate. This is when the Grantor keeps the right to use the property for the rest of that person’s life. It may be used in a Lady Bird Deed which is also known as an Enhanced Life Estate Deed.
Exceptions to Conveyance and Warranty
The next paragraph of a deed is the “Exceptions to Conveyance and Warranty”.
Most deeds state in this paragraph the following standard exceptions:
Validly existing easements, rights-of-way, and prescriptive rights, whether of record or not; all presently recorded and validly existing instruments, other than conveyances of the surface fee estate, that affect the Property; and taxes for the current year, which Grantee assumes and agrees to pay, and subsequent assessments for that and prior years due to change in land usage, ownership, or both, the payment of which Grantee assumes. Grantee agrees to pay all of the property taxes for the current and subsequent years.
This is referred to as the Standard Exceptions clause. It means that the items listed are excepted or excluded from the Warranty of Title in the deed.
This means the Grantor/Seller does not guarantee or warrant that the items listed will not be a problem for the Grantee.
For example, if there is a visible road on the property, it is excluded from the warranty.
Furthermore, any documents filed in the deed records are excluded from the warranty.
Good to know: The Grantee/Buyer will need to pay present and future taxes. If there is a Roll Back Tax caused by the Grantee’s use of the property, he or she will need to pay the extra tax.
Note: These exceptions or exclusions from warranty are why a Grantee who is paying money for the property should conduct a Title Search and obtain a survey for the property if the Grantee does not know the property or the Grantor.
Signing and Filing Your Property Deed
The deed must be signed by the Grantor, in front of a notary – no exceptions. A person with a Power of Attorney may be able to sign for the Grantor, provided the Grantor is alive. A notary should confirm that the Grantor is alive before notarizing the document using a Power of Attorney.
Good to know: Texas does not require witnesses to the signing of a deed. Some states require witnesses, but Texas does not require witnesses.
The Grantee does not need to sign the document. However, sometimes a Grantor may want the Grantee to sign the document to confirm the Grantee has read the deed and accepts all of its provisions. This may include an AS IS clause, mineral reservations, Life Estate, or a Vendor’s Lien. But, it is not required that the Grantee sign. It is merely optional that a Grantee sign the deed.
After the deed has been properly prepared, signed by the grantor and notarized, it should be filed with the county clerk’s office in the real property records for the county in which the property is located as soon as possible. This is to prevent the Grantor from selling or transferring it again.
The deed should include a statement: “After Recording Return To:“
This statement tells the county clerk the name and address of the person to whom the deed should be mailed after it has been recorded. This name and address can be anyone, but it is usually the Grantee. If there are more than one Grantees, the clerk will only mail it to one address. The address should be inside the USA. Most clerk’s will not mail outside the USA.
Good to know: If the deed is filed in person, the clerk will usually file it, record it, and hand it back to the person who signed it. The clerk may require a photo identification before you can file it in person.
There will be a recording or filing fee charged by the county clerk. This fee is generally from $15 to $40 depending on the county. Use a cashier’s check or money order payable to the county clerk. Most clerks do not accept personal checks.
Keep in mind that most county clerks will reject or not file a document that is not properly notarized, not legible, or not filed with the correct filing fee.
Good to know: County clerks do not research title. Just because the clerk files your deed, does not mean you really own the property. It just means the deed has been filed.
If the Grantor owned the property when he or she signed the deed, you own the property once it was signed. The title transfers with the signing of the document. Filing the document with the county clerk merely makes it a public record for the world to see. Filing is meant to prevent your Grantor from transferring the property again. Filing is for your protection. Make sure to file your deed ASAP.
Chain of Title
A property prepared deed is necessary to maintain the Chain of Title for a property.
The Chain of Title is the record of all property starting with the State of Texas down to the current owner. The chain of title must link each current owner to past owner starting with the State of Texas.
For example, all property in Texas originally was owned by the government. The government transferred a tract of land to person A, who transfers to person B, who dies and leaves it to person C, who marries D, loses the property in a divorce to D, D marries E, D and E sell to F, and so on. The chain from the government to F should be complete. If not, there is a problem with the chain of title and a title company may not insure the title to the property.
Transferring Property Title in Texas
Texas property deeds may have specific requirements that differ from other states. It is a good idea to have your deed prepared by a Texas licensed Real Estate Attorney when you plan on transferring property title. Mistakes may be difficult and/or costly to correct once a deed has been filed in the property records.
If you have any questions, give attorney Scott Steinbach a call at 972-960-1850. There is no fee for your call.