Kajal.deeds.docx

“NATURE, TYPES AND IMPORTANCE OF DEEDS”

SCHOOL OF LAW MANIPAL UNIVERSITY JAIPUR

IN PARTIAL FULFILLMENT OF THE REQUIREMENT PRESCRIBED FOR LL.B, 6th SEMESTER

UNDER SUPERVISION OF-

SUBMITTED BY-

Prof.

Kajal Chopra (VI Semester)

Assistant Professor

Reg NoB.A. LL.B (Hons)

CERTIFICATE

This is to certify that Ms Kajal Chopra student of LL.B (Hons.) 6Th semester, School of Law Manipal University Jaipur has completed the project work entitled “Nature, types and importance of Deeds” under my supervision and guidance. It is further certifying that the candidate has made sincere efforts for the completion of the project work.

Supervisor Name Prof. Assistant Professor

ACKNOWLEDGEMENT

This is not just a customary acknowledgement of help that I received but a sincere expression of gratitude to all those who have helped me complete this project and made it seem apparently more readable than otherwise it would have been.

I am in debt to my faculty advisor Prof.

for giving such an interesting and

amazing topic “Nature, types and importance of Deeds” and making it seem easy by lucidly explaining its various aspects. I would like to thank him for guiding me in doing all sorts of researches, suggestions and having discussions regarding my project topic by devoting his precious time. I thank department for providing Library, Computer and Internet facilities. And lastly I thank my friends and all those persons who have given valuable suggestions pertaining to the topic and have been a constant source of help and support.

Thanking everyone,

KAJAL CHOPRA

TABLE OF CONTENTS

INTRODUCTION ........................................................................................................................................ 5 What is a deed? ......................................................................................................................................... 5 DIFFERENCE BETWEEN DEED AND AGREEMENT ....................................................................... 6 TYPES OF DEEDS .................................................................................................................................. 6 TRANSFER OF LAND ............................................................................................................................ 8 EXECUTION............................................................................................................................................ 8 DELIVERY............................................................................................................................................... 9 Acceptance ................................................................................................................................................ 9 Recording .................................................................................................................................................. 9 IMPORTANCE OF A DEED ..................................................................................................................... 11 Why formatting a sale deed needs an expert? ......................................................................................... 12 SALE DEED IS THE CONVEYANCE DEED ..................................................................................... 12 ELEMENTS OF A DEED ...................................................................................................................... 13 Webliography.............................................................................................................................................. 15

INTRODUCTION You may have noticed that some formal commercial arrangements are expressed to be an "agreement" while others are expressed to be a "deed". Ever wondered what the difference is? In this Did You Know section, we'll briefly discuss what a deed is, how deeds are executed and some of the implications of using deeds.

What is a deed? In short, a deed is a special type of binding promise or commitment to do something. It seems to be a feature of every legal system that there is some particular ritual, act or instrument by which a person can notify the community that she or he most solemnly means and intended to be binding. It seems that the substantial requirement of a deed was that it be intended by the executing party to be the most serious indication to the community that she or he really means to do what he is doing. In modern times, this idea of serious commitment continues and today a deed is a special type of contract or binding commitment or obligation and is regarded as the most solemn act that a person may perform which: 

passes an interest, right or property;



creates an obligation binding on some person;



Or amounts to an affirmation or confirmation of something which passes an interest, right or property. There are various types of deeds with the requirements for each varying by jurisdiction. A deed is generally any legal instrument in writing which passes, affirms or confirms the interest, right, property etc. The requirements of a valid deed are that the grantor, the original owner of the land

conveys his interest to the guarantee, the recipient of the title. It is also important that the grantor must have legal capacity, which means that the grantor must be the person with a sound mind and with a lawful age- in most of the places the minimum age to fulfill the criteria for legal capacity is eighteen. Besides, a deed is a special type of binding promise to do something.

DIFFERENCE BETWEEN DEED AND AGREEMENT

The fundamentals of contract law are to offer and acceptance- an intention to be legally bound on consideration. Consideration forms the stem for an agreement, the parties need consideration to show that they have ‘bought’ the promise by doing some act or providing something in return for the promise. In contrast to the agreement or contract, there is no requirement for consideration for a deed, consideration is not mandatory, a deed does not need consideration because of the idea that a deed is the most solemn indication that the parties are intended to be bound.

TYPES OF DEEDS

Warranty Deed This type of deed is largely used for residential real estate sales. Warranty deed acts as a guarantee to the buyer where the seller has all the right to sell the property, and also the property is free from debts and other liabilities, in spite of the warranty deed. If any problems arise the buyer has the right to claim for compensation from the seller. Special Warranty Deed A Special Warranty Deed is not as same as the warranty deed. Here the seller’s guarantee, given to the buyer will not cover the entire property. Generally, the seller only guarantees for the problems which are created during the seller’s ownership of the property. A special warranty is most often used for commercial property transactions. It transfers all the rights to the buyer but warranties only what is specifically mentioned.

Quitclaim Deed Most often Quitclaim deed is used by the family members, spouses and mostly by people who are well acquainted with each other which allows one party to transfer property rights and claims to another party. Bargain and Sale Deed This deed is typically used for the sale of the court seized properties or real estate sales. In this case, it generally does not guarantee to the buyer that the seller owns the property free and clear. Grant Deed A grant deed transfers an interest in a property from the seller to the buyer in exchange for an agreed upon price. It guarantees that the seller absolutely owns the property free from all debts, and it does not provide a guarantee for the defects of the title like the warranty deed. Fiduciary Deed This fiduciary deed is used to transfer property when the grantor is a fiduciary such as a trustee. This deed only warranties that the fiduciary is acting in his allotted capacity and authority. Trust deed A trust deed is a written instrument which transfers property to a trustee to secure an obligation such as a promissory note or a mortgage. The trustee has the right to sell the property in the case of a default made in the obligation.

Therefore, different types of deeds exist to facilitate the buyer and the seller but the most important fact is that before executing a deed it is mandatory to read all the terms and conditions of the deed to avoid problems in future.

TRANSFER OF LAND

Land can only be transferred from one individual to another in the legally prescribed manner. His torically speaking, a writtendeed is the instrument used to convey ownership of real property. A deed is labeled an instrument of conveyance. Under Spanish law, which was in effect at an ear ly date in areas of thewestern United States, a written deed was not necessary to convey title to la nd. A verbal grant was sufficient to complete thetransaction, provided that it was accompanied b y a transfer of possession. Verbal grants of land in Texas have, therefore,been given recognition i n U.S. courts. A deed must describe with reasonable certainty the land that is being conveyed. The conveyance must include operativewords of grant; however, technical terms do not need to be used. The gran tor must be adequately identified by theconveyance, although it is not required that the grantor's name be specifically mentioned. State laws sometimes require thatthe deed indicate the residence of the grantor by town, city, county, and state. In order for title to property to pass, a deed must specify the grantee with sufficient certainty to d istinguish that individual fromthe rest of the world. Some statutes mandate that the deed list the g rantee's residence by town, city, county, and state.

EXECUTION

In order for a deed to be properly executed, certain acts must be performed to create a valid conv eyance. Ordinarily, anessential element of execution is the signature of the grantor in the proper place. It is not necessary, however, that thegrantee sign the deed in order for it to take effect as a

conveyance. Generally state statutes require that the deed be signedin the presence of witnesses, attesting to the grantor's request.

DELIVERY

Proper delivery of a deed from the grantor to the grantee is an essential element of its effectivene ss. In addition, the grantormust make some statement or perform some act that implies his or her intention to transfer title. It is insufficient for a grantorto have the mere intention to transfer title, in the absence of further conduct that consummates the purpose. There is no particular prescribed act, method, or ceremony required for delivery, and it is unnece ssary that express words beemployed or used in a specified manner. The deed need not be physic ally delivered to the grantee. It is sufficient to mail it tothe grantee. Delivery of the deed by the at torney who has written the instrument for the grantor is also adequate. Unlessotherwise provided by statute, a deed becomes effective upon its delivery date. The mere fact that the grantee has ph ysicalpossession of the deed does not constitute delivery unless it was so intended by the grantor.

Acceptance A deed must be accepted by the grantee in order for proper transfer of title to land to be accompli shed. There are no fixedprinciples regarding what acts are sufficient to effect acceptance, since th e issue is largely dependent upon the party's intent. Acceptance of a deed need not be made by express words or in writing, absent a contrary statutor y provision. A deed isordinarily accepted when the grantee retains it or obtains a mortgage on the property at issue.

Recording Legal policy mandates that a deed to real property be a matter of public record; therefore, subseq uent to delivery andacceptance, a deed must be properly recorded. The recording process begins when the deed is presented to the clerk's or recorder's office in the county where the propertyis located. The entire instrument is duplicated, ordinarily by photocopy

ing. The copy is inserted into the current book of officialrecords, which consists exclusively of c opies of documents that are maintained and labeled in numerical order. A properly recorded deed provides constructive notice of its contents, which means that all partie s concerned are consideredto have notice of the deed whether or not they actually saw it. A major ity of jurisdictions place the burden upon home buyersto investigate any suspicious facts concern ing the property of which they have actual or constructive notice. If, for example,there is a refere nce to the property for sale in the records to other deeds, the purchaser might be required to deter minewhether such instruments give rights in the property to other individuals. A map referred to in a recorded deed that describes the property conveyed becomes part of the d ocument for identificationpurposes. The original copy of a deed is returned to the owner once it has been duplicated, recorded, and fil ed in the office of therecorder. A records or clerk's office maintains a set of indexes, in addition to official records, in which info rmation about each deed isrecorded, so that upon a search for a document such information can b e disclosed. A majority of states have a grantorgrantee index, a set of volumes containing a reference to all documents recorded alphabetically a ccording to the grantor'sname. The index lists the name of the grantor first, followed by the name of the grantee, then ordinarily a description of theinstrument and sometimes of the property, and ultimately a reference to the volume and page number in the official recordwhere the document h as been copied. A granteegrantor index has the identical information, but it is listed alphabeticallyaccording to the grantees ' names. A tract index arranges all of the entries based upon the location of the property. Indexes are frequently classified according to time periods. Therefore separate sets of indexes co vering various periods oftime may be available. A significant problem can result in the event that a deed cannot be located through the indexes. T his situation could resultfrom a mistake in the recording process, such as indexing the deed under the wrong name. In a number of states, the courtswill hold that such a deed was never recorded i nasmuch as it was not indexed in such a manner as to provide notice tosomeone properly conduct ing a check on the title. In these jurisdictions, all grantees have the duty to return to the recorder's

office after filing to protect themselves by checking on the indexing of their deeds. A purchaser who lives in a state with suchlaws should protect himself or herself either by consulting an attorn ey or returning to the recorder's office to ascertain that thedeed is properly recorded and indexed. Other state statutes provide that a document is considered recorded when it isdeposited in the pr oper office even if it is improperly recorded such that it cannot be located. In these states, there a re nopractical steps for subsequent buyers to take to circumvent this problem.

IMPORTANCE OF A DEED A sale deed is the most crucial document of your housing deal. It is the document that you need to provide as proof of ownership. Many people, however, mistake it for other similar documents such as the Sale Agreement or the Deed of Assignment. To understand it better, a sale deed, or the conveyance deed, is one that is drafted at the time of sale. It is a document that renders the sale complete. Through the sale deed, the seller transfers the rights of ownership of the property in question to the buyer. Once the document is drafted and signed, the ownership rights completely get transferred to the buyer in the deal. Also, any pending impediments, such as property tax, water and electricity charges and so on, needs to be paid in full before the sale deed is formatted. Hence, the sale deed usually contains all such relevant information pertaining to the property under sale. As the document holds so much importance, a highly skilled individual would need to draft it, rather than anyone with a little knowledge of what it conveys or signifies. Here is how a sale deed need to be drafted, for it to be legally binding and properties transferred without any hassles.

Why formatting a sale deed needs an expert? Drafting a sale deed was once the work of skilled draftsmen who used to apply their education and expertise in law to draft unique documents to finalize a deed. In those days, the draftsmen and lawyers used to consider every deed as separate (since the copy-paste option was, of course, not available) and draft it according to the demands of circumstance. If you, thus, notice older documents written in hand, or even those typewritten, the documents of sale had clarity and consequence, so as to make it completely and irrevocably binding to the law. This skillful execution is now lost mostly, with sale deeds being churned out using shoddy templates and just altering the names of the seller and buyers. However, what many of us do not understand is that what may or may not be ‘binding’ and compulsory, may not be so, for the other person, and thus, one is required to study the sale deed carefully, examine it with the help of a lawyer or any expert in sale deeds, before signing the same, or even drafting it for approval.

SALE DEED IS THE CONVEYANCE DEED The term ‘Conveyance’ denotes transfer of property between two living persons or ‘Inter-vivos’. Conveyancing a deed for sale, is thus, done in accordance with the ‘Transfer of Property Act, 1882’ and the Registration Act, 1908 and any deed prepared should adhere to the rules prescribed by the Act. The conveyance document describes what all has been agreed upon by both properties regarding an immovable property under question, and what settlements need to be paid by the buyer to the seller. Any person signing such deed, will be legally bound to the contract, and cannot, at any point of time, retract from the conditions laid down on the deed.

It is, thus, essential for the persons concerned in the deed to thoroughly examine the document, and entrust it to a legally adept expert to ensure nothing is amiss or not agreed upon. Several legal terminologies are such that only a legal expert or one with the proper qualification would be able to do justice to it and bring into notice anything which is not correct.

ELEMENTS OF A DEED

A sale deed contains all relevant information pertaining to the sale, and is the most valid and crucial document in any sale of immovable property. The Sale Deed needs to be drafted on a non-judicial stamp paper of value as set by the state government. Each state has a predetermined value of stamp paper for drafting sale deeds. Apart from the stamp papers required to draft the deed, any outstanding amount for legalizing the deed can be paid through Challan, stamping or any other means through which the state government demands. The sale deed, at the time of drafting, should have the following details: Type of deed to be prepared: The property can either be sold, mortgaged or leased. Depending upon the requirement, the ‘sale deed’ will carry the name as ‘Deed of Sale’ or ‘Deed of Mortgage’ and so on.

Name and address of the executing parties: Full name, address and any other information such as age and residence address of the parties need to be specified at the beginning of the document. Any sale deed is not valid until it carries the names of both the parties in their relevant places – as seller and buyer or lessee and lessor. Property description: Any immovable property under sale will need to be described, with address, if it’s a house, number of rooms and so on, and plot area, construction area, any additions to it, number of balconies, and anything else that is deemed relevant need to be included. Sale agreement: This is a document wherein both parties agree to ‘sell’ and ‘buy’ and also give a detailed account of what compensations needs to be paid, and at what date, any advance is paid, and agreed and signed upon by both parties. An agreement of sale proceeds the sale deed, and is a legally binding document, as the sale deed itself. The mode of payment and the date needs to be mentioned to prevent any disagreements at a later date. Delivery and the passing of title: The signing of the sale deed by both parties (on each page of the document) irrevocably transfers the title of the property to the buyer, to and when they have adhered to the compensation and paid it in full. Any rights of the property now legally will belong to the buyer. Registration of the document: The registration of immovable property is done in accordance with the Registration Act, 1908. The parties (buyer and seller) need to be present in person, with all relevant documents (or their representatives or authorized agents) in the local sub-registrar’s office to sign/thumb print on the sale deed, and also to close the deal. Proof of Registration: The proof of registration/a certified copy of the registered property with the name of the buyer will be available from the office for future reference. Each and every single detail needs to be thoroughly analyzed and checked by an expert before signing to prevent any legal hassles.

Webliography 

https://legal-dictionary.thefreedictionary.com/Types+of+Deeds,accessed

electronically

on 10th March 2019 

https://vakilsearch.com/advice/requirements-of-a-sale-deed/, accessed electronically on 9th March 2019



http://shodhganga.inflibnet.ac.in/bitstream/10603/31643/13/13_chapter%205.pdf, accessed electronically on 9th March 2019