Transferring real estate in nutshell
Law You Can Use
Q: How is real estate transferred in Ohio?
A: Most commonly in Ohio, one party transfers title to or an interest in real property to another party through a written document called a deed. There are a few situations, however, such as when the government uses its eminent domain power to acquire private property for a public improvement, where a court may order the transfer of real estate without a deed. Also, in rare cases, title may be transferred as the result of continuous possession by a person other than the owner. Ohio law requires a transfer of real estate to be in writing.
Q: What must a deed contain?
A: A deed must:
- identify the current owner (“grantor”) and the new owner (“grantee”);
- specifically describe the land to be transferred (a street address is not enough — a legal description is required); and
- contain language saying that the grantor “grants” the property to the grantee.
The grantor must sign the deed in front of a notary public or another authorized officer, who will acknowledge the signing of the deed.
Q: The title to my house is in my name alone. Will my spouse have to sign the deed when I sell the property?
A: Yes. Ohio law gives your spouse what is known as “dower” rights, which means that after your death, your spouse may claim an interest in the property even though you have sold it, and even though your spouse’s name does not appear in your deed. Your spouse must sign the deed to the buyer to clear the dower interest from the title.
Q: If I want to transfer my property to someone else, must my deed to the property be recorded with the county recorder’s office?
A: While it is generally wise to record your deed, Ohio law does not require a deed to be recorded for title to pass from you (the grantor) to a grantee. To transfer title, you must deliver the executed and acknowledged deed to the grantee. This means that you must give up control over the deed during your lifetime and intend to transfer title to the grantee. To complete the transfer, the grantee must accept the delivered deed. If the deed benefits the grantee, acceptance ordinarily will be presumed, but if the deed is not recorded in the county recorder’s office where the property is located, the grantee may risk losing the property to a subsequent buyer. The subsequent buyer generally will not have legal notice of the transfer unless the deed is recorded. Let’s say you, the property owner, give a deed to Buyer A, but Buyer A does not record that deed. Later, you deed the same property to Buyer B (who pays for the property without knowing about the deed you gave to Buyer A). Because Buyer A’s deed was not recorded, Buyer B will not have legal notice of the deed to Buyer A. If Buyer B records the deed, Buyer B may be considered the new owner.
Q: What is a quitclaim deed, and how does it differ from a warranty deed?
A: A quitclaim deed transfers whatever title the grantor may have without giving the grantee any assurance that the grantor has any title to the property. A parent who gives a parcel of real estate to a child might use a quitclaim deed, because the child likely will trust the parent’s title. In a warranty deed, the grantor promises (“covenants”) that he or she is transferring title free of liens and other encumbrances. Ohio law recognizes:
- general warranty deeds covenanting against all lawful adverse title claims; and
- limited warranty deeds covenanting only against adverse claims created by the grantor.
Q: Can I sign a deed so my house can be transferred automatically when I die?
A: Yes. You can sign a survivorship deed, which transfers the title to yourself and at least one other person named in the deed. When you die, your interest will transfer automatically to the other person if he or she is alive. For example, if you and your spouse sign a survivorship deed to your house and you are the first to die, title will pass to your spouse without going through your probate estate. You can also sign and record a transfer-on-death designation affidavit identifying one or more beneficiaries who will receive the property when you die. Unlike a survivorship tenant, a transfer-on-death beneficiary does not have an interest in the property until your death. Also, you may revoke a transfer-on-death designation before your death by signing and recording a new affidavit.
This column was provided by the Ohio State Bar Association (OSBA) and prepared by Dayton attorney Steven Davis, of Thompson Hine LLP. Articles appearing in this column are intended to provide broad, general information about the law. Before applying this information to a specific legal problem, the OSBA urges readers to seek advice from an attorney.
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