A real property conveyance is the transfer of the title of real property from one individual to another. A conveyance occurs when the owner of the property transfers their ownership of that property to another party.
Real property may include a home or another type of property, for example, commercial real estate. A conveyance may occur in full or the property owners may transfer only a portion of their ownership interest.
- Conveyances may occur in numerous different ways, including, but not limited to:
- Through a sale of the property;
- Through transfer as a gift; or
- By inheritance, such as through succession laws.
Generally, the statute of frauds requires that all real estate sales be recorded in writing. Therefore, the conveyance of title to real estate is required to be in writing if it involves a sale.
This is done to help avoid any disputes or breaches of contract in the future. In addition, it helps establish the legal owner of the property for other purposes, for example, taxes.
The owner of real property, called a grantor, is required to use words of conveyance to transfer their interest in property to the individual receiving the property, called the grantee.
They are usually required by law, although the exact words that are required may vary by jurisdiction. Transfer of an actual, physical deed is not required so long as the individual clearly expresses their intention to make the conveyance.
- A deed is required to:
- Be in writing;
- Be signed;
- Be dated; and
- Contain a description of the property that is being transferred.
In addition, in order for a valid conveyance to occur, there should not be any title defects, for example, an improperly recorded title.
What are the Types of Real Property Conveyances?
Generally, there are four main categories of real property conveyances. Some variations do occur within these categories.
Courts, however, will typically not recognize a transfer if the conveyance language does not fit within one of these main categories. The four categories of real property conveyances include:
A fee tail is intended to preserve the estate in the bloodline of the individual who is receiving the property. Therefore, only the children of the fee tail holder benefit from the fee tail.
A fee simple absolute is a type of conveyance of real property which gives absolute ownership in that property. The holder of a fee simple has both a present and a future interest in the property.
The duration of a fee simple absolute is indefinite. The property interest is not subject to any specific conditions.
The holder of a fee simple absolute may, at any time, sell all or part of the property or distribute the property when they pass away through their will. A fee simple absolute is the broadest category of property interest.
A life estate is an interest in real property measured by the duration of an individual’s life, typically the individual who will receive the property. Once a life tenant passes away, the property is transferred to the individual with future interest.
Life tenants are generally entitled to all uses and profits from the property. The life tenant does not maintain any rights to transfer that property when they pass away.
Because of this, a life tenant does not have the right to commit waste. This may include any action that causes the property to lose value or neglects the premises.
A fee simple defeasible is a type of conveyance that may have certain conditions or limitations on the property transfer. If these conditions are not met or violated, the property will either revert back to the original grantor or go to a specified third party.
There are 3 categories of fee simple defeasible, including:
- Fee simple determinable: The interest in the property is automatically terminated when a condition is violated or is unmet;
- Fee simple subject to condition subsequent: Transfer where the violation of the condition would give the original owner of the property the option to take back the property; and
- Fee simple subject to executory limitation: This conveyance confers a future property interest to a third party, not the original owner.
What is a Fee Tail?
A fee tail is a type of conveyance of an interest in real property, as noted above. Fee tails originated from English Common Law.
A fee tail is intended to preserve the estate in the bloodline of the individual receiving the property interest. Because of this, only the children of the holder of a fee tail will benefit from that fee tail.
If a fee tail holder passes away without having children, the bloodline and the fee tail end. The property then reverts back to the original grantor.
A fee tail is a type of conveyance that transfers an interest in real property to another individual but restricts any further sale or transfer of that property. A fee tail is also referred to as a restraint on alienation.
Fee tails have been abolished in nearly every state. The states that still recognize fee tails include:
- Delaware;
- Maine;
- Massachusetts; and
- Rhode Island.
How is a Fee Tail Conveyed or Created?
For a fee tail to be created, it must have an express reference to the heirs of his body or substantially similar words. This language indicates that the property will only transfer to the direct descendants of the individual who was originally given the property.
As noted above, the majority of states have eliminated the fee tail estate. In states where the fee tail has been eliminated, the courts have interpreted them in two ways.
Certain states will change the fee tail into a fee simple. These states give the original individual receiving the property the entire interest in the property.
Other states make the fee tail into a life estate. After a life estate ends, the property goes to the heirs of a life estate holder in a fee simple.
Is it Possible for a Conveyance to be Disputed?
A conveyance of a property may be disputed. Disputes regarding real property and the conveyance of real property frequently occur, especially when a grantor fails to provide clear and legal words of conveyance.
Examples of common property conveyance disputes include:
- An attempt to convey property that the grantor does not legally own;
- Will or trust disputes;
- Issues with a defective or improperly recorded title; or
- Conveyances based on fraud or deceit.
Legal action may be taken if a conveyance or a failure to convey results in a measurable loss. Examples of remedies resulting from a conveyance dispute include a damages award and a court injunction that requires the defendant to transfer the title to the property buyer.
Should I Convey My Property Interest in the Form of a Fee Tail?
Unless you own property in one of the 4 states that recognize fee tails, it would not be an appropriate method of conveyance of your property. If, however, you like the idea of the fee tail and want your property to proceed to your children, it may be helpful to consult with an estate planning attorney.
Your attorney can assist you with drafting a similar type of conveyance to accomplish your goals. Your lawyer can also help you with any other issues, questions, or concerns you may have related to estate planning.
