Signed, Sealed (notarized), Delivered (actually or constructively), the Deed is Yours

In Ohio, seals are no longer required for a valid deed (except to the extent part of the notary stamp/seal). Neither are two disinterested witnesses required. Signed and delivered, however remain two of the most important requirements for a Stevie Wonder song, as well as for a valid deed in Ohio.

To be valid in Ohio, a deed must:
1) be in writing

2) name the grantee(s);

3) be transferred for consideration (and a valid deed must contain a clause acknowledging receipt of consideration [note: when a deed conveys real estate as a gift to a relative, love and affection may be sufficient consideration, however, in most states, including Ohio, it is customary to recite a nominal consideration, such as "$10.00 and other good and valuable consideration”]);

4) be in statutory form (See O.R.C.
Chapter 5302) and specifically note any exceptions/reservations;

5) contain an accurate legal description of the real estate conveyed;

6) be signed by all grantors named in the deed (who must be at least 18 years old and of sound mind). Note: when a grantor is married, the spouse also must sign the deed in order to release dower or other rights;

7) contain a signed acknowledgement (a formal declaration that the grantor signing same does so voluntarily and that his or her signature is genuine, which declaration must be made before a notary public or other authorized public officer, who must sign the same, and whose signature also serves as a witness to the grantor’s signing); and

be delivered and accepted (the grantor may deliver the deed to the grantee either personally or through a third party).

A deed need not be recorded (in the office of the county recorder in the county in which the property is located) in order to be valid as between grantor and grantee. (HOWEVER, ALWAYS RECORD THE DEED). Without a recording of the deed, the grantee has little protection from grantor, or anyone else from recording liens or other encumbrances against the title which would have priority over the unrecorded deed. Moreover, if grantor transfers the same property by deed to another grantee (and the 2nd grantee has no notice of the first transfer), prior to the first grantee taking possession; the 2nd grantee owns the property and the first grantee owns a lawsuit).

As to delivery of the deed, the recent case of Goddard v. Goddard, 2011-Ohio-680 (4th Dist. Ct. of App., Scioto Cty.) illustrates that actual, physical delivery of the deed from grantor to grantee is not required. Rather, delivery may be demonstrated by words without acts; (such as if the deed is lying upon a table, and the grantor says to the grantee, ‘take that as my deed’); or it may be by acts without words.

In the afore-mentioned case, Carl Goddard prepared a deed to transfer Carl’s interest in property jointly owned by Carl and his mother (Alma) to Alma. Alma testified that Carl executed the deed and showed it to her. She stated that she then gave him money to record the deed and that he informed her that he had recorded it. Carl in fact did not record that deed, and thereafter transferred the property to a 3rd party (Alma’s other son, Mike) who took possession while Alma was hospitalized (even though he had prior notice of Alma’s claim to the property by virtue of an affidavit Alma filed and recorded prior to the transfer to Mike). Alma sued to regain possession and title.

The trial court determined that Carl “executed a valid deed transferring” the property; he just failed to record it. Having held the first deed was properly transferred, and the 2nd grantee (Mike) had prior notice (by virtue of the affidavit), the trial court held that title should revert back to Alma.

At the court of appeals, the appellant (Mike) claimed that the trial court erred because the record contained no evidence that Carl actually recorded the deed or delivered the deed to Alma. The Fourth District Court of Appeals (affirming the trial court’s decision) reasoned that “simply because Carl did not record the deed does not mean that he did not deliver the deed. Moreover, a valid delivery does not require the grantor to physically deliver the deed to the grantee. Here, Carl led appellee to believe that he had effected a valid transfer of the property…and appellee’s testimony sufficiently demonstrates that he possessed a present intention to transfer the property to appellant”.

To support its holding, the Court in Goddard cited prior Ohio casesthat already established “it is not essential to the validity of a deed, that it be actually delivered to, or ever pass into the hands of the, grantee.” Instead, “the fact of delivery may be found from the acts of the parties preceding, attending, and subsequent to the signing, sealing, and acknowledgment of the instrument.” The Court also cited authority to demonstrate that while a deed does not have to be recorded to transfer title… the filing and recording of same is prima facie evidence of delivery, in the absence of any showing of fraud.”

The moral of this story is simple. If the parties intend to validly transfer title by deed, all of the requirements to establish and transfer a valid deed, must be followed. Moreover, the deed should be recorded, immediately thereafter for the grantee to be able to claim superior rights in the property, against all others (subject, of course to any encumbrances transferred with title). If one or both parties do not intend for a deed to be deemed validly transferred/delivered; they should not sign same or make any statements that could reasonably be construed as intent to deliver. Remember as well that forwarding documents to a third party, such as an escrow agent could also be construed as delivery/transfer, unless there are specific escrow instructions conditioning the validity of same on receipt of all funds and documents required of both parties in a transaction.

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