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Quitclaim Deed Transfers Property without Ownership Guarantee

Q.: My elderly mother wants to transfer ownership of her home to me, her only child. My attorney drafted a quitclaim deed. What is a quitclaim deed?
A.:
A quitclaim deed is a written document that transfers the title (ownership) of real property such as a home or piece of land. A quitclaim deed offers no warranties or guarantees that the owner has good title or ownership, but simply conveys whatever interest exists when the deed is executed (transferred) and delivered.

Q.: Must the transfer of title of real property via quitclaim deed involve an exchange of money?
A.:
No. A transfer of an interest in real estate or land by a quitclaim deed does not have to involve the exchange of money. Commonly, a quitclaim deed is used when making a gift of property. The terms “buyer” and “seller” in this article—and in the quitclaim deed itself—are used to distinguish between the parties who are exchanging property but do not necessarily mean that money must change hands.

Q.: Why is it called a “quitclaim” deed?
A.:
It is called a “quit claim” deed because the seller simply “quits” his or her “claim” or interest in the property and transfers ownership to the buyer without providing any guarantee that the seller rightfully owns the property or is legal entitled to transfer ownership to the buyer. On the other hand, a “warranty” deed “warrants” or guarantees that the seller owns the property and can prove it.

Q.: Why did my attorney use a quitclaim deed when transferring title of my mother’s house? Aren’t warranty deeds better?
A.: Warranty deeds aren’t necessarily “better”; they are just used to achieve different results. Warranty deeds provide greater protection than quitclaim deeds, especially for the buyer, and in situations where the buyer and seller do not know each other. Quitclaim deeds tend to be used in gift situations, since the parties have a prior relationship and the “buyer” is not paying to receive the property. Warranty deeds put the seller at risk of being sued by the buyer—or by later owners—if there is a problem with the title. Your mother may not want to assume that risk if she is not being paid for the property. Quitclaim deeds are often used when neighbors are settling a boundary dispute, spouses are getting a divorce or dissolution, or an elderly parent is giving a child a house. If you later sell or mortgage the property, your buyer or lender probably will require you to clean up any title problems that may be revealed by the property’s title examination, so that the buyer or lender can obtain any necessary title insurance.

Q.: I am wondering about the validity of the quitclaim deed my mother signed because it is only notarized, not witnessed. Don’t two witnesses also have to sign the deed for it to be valid in Ohio? Did the law change?
A.:
Yes. As of February 1, 2002, Ohio law no longer requires two witnesses to the signing of the seller’s quitclaim deed or to other transfers of title to real property such as a mortgage or land contract. You can create a valid deed as long as an authorized public notary notarizes it.

Q.: The attorney offered to “record” the quitclaim deed after my mother signed it and delivered it to me. What does this mean?
A.:
Recording a deed means filing it in the county in which the real property is located. Each county in Ohio maintains a Recorder’s Office that is open to the public for inspection of deeds and other documents concerning real property. Deeds should almost always be recorded, as promptly as possible. A deed can still be valid without being recorded, but if a deed is not recorded, other people will not know about your interest in the real property conveyed to you by the quitclaim deed. Failing to record a deed can present a problem. For example, suppose an elderly mother transfers her home to her daughter by quitclaim deed and the daughter never records the deed. If the daughter attempts to refinance the mortgage on the house, the bank will denythe application because there is no proof that the mother transferred the ownership, and that the daughter is the rightful owner. Or suppose that a husband deeds the marital home to the wife as part of a divorce settlement, and the wife fails to record the deed. Someone who obtains a court judgment against the husband may be able to force the sale of the house and collect the judgment from the sale proceeds. Recording a deed is alsoa wise move if you ever want to sell your interest in real estate or obtain a loan using the property as collateral.

9/17/2007

Law You Can Use is a weekly consumer legal information column provided by the Ohio State Bar Association. This article was prepared by Bellbrook attorney DeAnna Doggett Johnson.

Articles appearing in this column are intended to provide broad, general information about the law. Before applying this information to a specific legal problem, readers are urged to seek advice from an attorney.

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