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Bargain and Sale Deed - Which is the Right Deed to Use?

October 6, 2019
David Parker, Esq.
How can I protect my real estate asset
David Parker, White Plains and New City NY Estate Planning Attorney
David Parker, Esq.
David Parker is an attorney who specializes in Estate Planning and Elder Law and has been practicing law for 30 years. Be it Wills, Trusts, Powers of Attorney, Health Care Proxies, or Medicaid Planning, David provides comprehensive and caring counsel for seniors and their families. A large portion of David’s practice is asset protection strategies so that families do not lose their hard earned savings to nursing home care costs. He also handles probate administration for the settlement of estates.
Two of the most widely used deeds in real estate are quitclaim deeds and warranty deeds. Keep reading to learn about these two types of deeds and how they work—and what’s at stake if you choose the wrong one.

Bargain and Sale Deed - When a property is bought, sold or transferred, part of the paperwork is the deed. What type of deed a property has and what type of deed is used when one person transfers their interest in a property to another person is important, says Bankrate in the article “Quitclaim vs. warranty deed: What you need to know.”

What is a quitclaim deed? A quitclaim deed is a kind of deed that transfers the actual legal rights to a property, if any exist, that the grantor—the person transferring their ownership in a property—has, with no representation, warranty, or guarantee. In other words, this kind of deed gives no guarantee of the title status of a property. It also doesn’t give any guarantee of whether there are any liens against it or if there are any other encumbrances. You only get what the grantor may have. There is nothing more.

If the grantor truly has the legal right to the property and there are no liens or other problems, then the quitclaim deed works fine. For the most part, quitclaim deeds are used then there’s no question about the ownership interest in a property. For instance, if a person is transferring ownership of a property they own to a limited liability company or, in the case of estate planning, into a trust that they also control.

That also holds true for transactions within the family, if a couple is getting married and the property-owning spouse wants to add the spouse to the deed. In a divorce, one spouse can also quitclaim their interest to the other spouse.

What about a bargain and sale deed?  This kind of deed is used in more complex situations, including when a person is getting a mortgage to purchase a home. In New York it is called a bargain and sale deed with covenant against grantor acts. In this case, the person transferring title of the property (the seller) is guaranteeing that they have a defensible ownership in the property and has the legal power to transfer their ownership interest to the buyer. The seller is guaranteeing the validity of the ownership against anything they might have done.

If the grantor of a bargain and sale deed with covenant against grantor acts misrepresents their ownership, they can be sued. Here’s why this matters, especially in estate planning.

Let’s say a few siblings inherit their mother’s house. They don’t need the house and decide to sell.  However, one of the siblings didn’t really want to sell the house and decides after everyone has agreed otherwise, that they want to keep the house. The sibling sues to get possession of the home. The other siblings could use the warranty they received under the warranty deed to bring in the other siblings to the lawsuit.

The bargain and sale deed with covenant against grantor acts deed protects the people who purchased the home, since some of the siblings sold the property without permission of all the siblings.

A warranty deed takes this one step further and guarantees against all acts in the past even if not caused by the grantor.

If there had been a quitclaim deed, the buyer of the property would be left to defend themselves in a court proceeding.

Bargain and sale deed with covenant against grantor acts are the safer option, when purchasing a property. In estate planning, buyers of an inherited home should purchase a home, only where there is a bargain and sale deed with covenant against grantor acts deed. Even in family transactions where things seem to be fine, a warranty deed will be better for the buyer.

An estate planning attorney can be a key source, when it comes to passing property from one generation to another and helping a sale of an inherited property go smoothly.

Reference: Bankrate (Sep. 4, 2019) “Quitclaim vs. warranty deed: What you need to know”


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