Frequently Asked Questions
Q: My husband has a judgment against him. Can creditors come after my separate property?
A: The answer would depend on the type of liability that forms the basis of the judgment. One's separate property, as well as one's sole management and control exempt community property, is secure from the nontortious liabilities of the other spouse. A tortious liability is liability incurred by negligence or willful act (hurting someone in a car wreck). On the other hand, the breaking of a contract to pay money is usually not a tortious act. Only if you were legally obligated through a contract to be responsible for your spouse's debt would your property be liable, and sometimes the judge in the lawsuit can change these general rules.
Q: Do I need a deed to transfer property?
A: Almost always. You can't transfer real estate without having something in writing. In some situations, a document other than a deed is used -- for example, in a divorce, a court order may transfer real estate from the couple to just one of them.
Q: What is a GENERAL WARRANTY DEED?
A: This is the mostly commonly used deed form today. By the use of appropriate language in the deed, a covenant of warranty is created. This covenant is said to be the broadest and most effective covenant. In effect, it is a contract with reference to the title, under which the grantor or convenator agrees to pay damages if the title fails.
Q: What is a SPECIAL WARRANTY DEED?
A: In a special warranty deed, the seller limits the covenant of warranty. He does this by limiting the warranty against all persons claiming the title 'by, through, or under him, but not otherwise". The effect of this limitation is to relieve the seller from any liability for claims that do not arise through him. Thus, the warranty of title against those claiming by, through, or under grantor is not breached by assertion of prior and superior title. Special warranty deeds are insurable when given by a lien holder after foreclosure and by a financial institution acting as the representative of an estate or trust.
Q: What is a DEED WITHOUT WARRANTY?
A: This type of deed simply does not contain any covenant of warranty. A deed without warranty may convey all the right, title and interest of the grantor at the time of its execution, as fully as one with a warranty, as the covenant of warranty adds nothing to the deed insofar as it operates as a conveyance of an existing right. However, as hereinafter pointed out, a deed without warranty will pass after acquired title like general and special warranty deeds do, but on a different theory.
Q: What is a Quitclaim Deed?
A: A quitclaim deed is one where the grantor only conveys the right, title, and interest of the grantor. The distinguishing feature that sets it apart from the deed without warranty is that it does not purport to convey the land itself but only whatever interest the grantor may have in the land. A deed that goes so far as to convey the land itself, even though quitclaim language is used, will be interpreted to be a deed without warranty. But the classification of a particular deed as a quitclaim or a deed without warranty, in some cases, may be quite difficult, as this is a question of intent to be gathered from the four corners of the instrument itself.
Few, if any, title companies would or should insure the title when the grantor conveys by quitclaim deed, as a purchaser in such cases cannot be an innocent purchaser. It is not even desirable that a quitclaim deed appears anywhere in the chain of title.
Further, when a title company insures the title based on a quitclaim deed from the seller there is also the possibility of exposure under the Texas Deceptive Trade Practices Act in the event of a failure of title.
Q: Does a deed have to notarized?
A: Yes. The person who signs the deed (the person who is transferring the property) should take the deed to a notary public, who will sign and stamp it. The notarization means that a notary public has verified that the signature on the deed is genuine.
Q: What is a Deed of Trust?
A: A Deed of Trust (also called a Trust Deed or Mortgage in some states) isn't like the other types of deed; it's not used to transfer property. A Deed of Trust transfers title to land to a "trustee", usually a trust or attorney, which holds the land as security for a loan. When the loan is paid off, title is transferred to the borrower. This is usually accomplished by the lender signing a 'Release of Lien' which is then given to the borrower who should immediately record it in the land records at the county courthouse in the county the property is located in. The trustee has no powers unless the borrower defaults on the loan; then the trustee can sell the property and pay the lender back from the proceeds, without first going to court.
Q: What is a forced sale?
A: A forced sale is the sale of debtor's property by a creditor, either through voluntary lien (Deed of Trust, Mechanic's Lien Contract,) or involuntary lien (judgment lien, tax lien), to satisfy a debt of the creditor which the debtor has not voluntarily paid.
Q: What is a house closing?
A: The final transfer of the house to the buyer. It occurs after both the seller and the buyer have met all the terms of the contract: the actual transfer and signing of the documents has occurred and the deed is recorded.