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The Deed in a Residential Real Estate Sale

A transfer of land from a seller to a buyer must be accomplished through written documentation in order to satisfy requirements of the Statute of Frauds. Typically, real estate transactions involve many written documents from the offer, which is usually in the form of a contract to purchase, to the deed.

A present intent to transfer title to a buyer

The deed is the written instrument by which title is transferred to the buyer. By the deed, the seller shows that he has a present intent to transfer the title. To show a present intent, the deed may contain words such as “give,” “grant,” “sell,” “convey,” or any other words which convey the meaning of a present intent to transfer title to the buyer. The deed should clearly identify the buyer or the person who is taking title on behalf of the buyer if the property is being placed into a trust.

Signed by the seller

The deed must be signed by the seller. Although it is not necessary for the buyer to sign, the buyer’s signature shows that the buyer has acknowledged and accepted the deed. An acknowledged deed is a self-authenticating document that can be recorded or admitted into evidence in a court of law.

Description of the property to be transferred

The deed should contain a description of the property to be transferred. The description itself does not have to contain any magic words in order to be effective, so long as it accurately describes the property. The description may be made by metes and bounds, by reference to a recorded document, an address, or a legal description. However, the more accurately the property is described, the less likely there will be any doubt or ambiguity as to which property, or portion of that property, the seller intends to transfer.

Effective upon delivery

A deed is not effective until it has been delivered by the seller. The deed does not have to be physically handed over to the buyer in order to be effective, although the physical transfer of the deed would be conclusive of the seller’s intent to transfer the property. Ordinarily, all that is needed is the seller’s intent to deliver the deed to the buyer. The seller may deposit the deed with the buyer, with an escrow agent, or with a trustee for the buyer’s benefit. In any of these formats, delivery of the deed is effective only if the seller has the present intent to transfer the property to the buyer.

The Fair Housing Act, which can be found at 42 U.S.C.S. § 3601 et seq., prohibits discrimination in the sale or rental of real estate on certain enumerated bases. In its findings and declaration of purpose, Congress stated the following:

It is the policy of the United States to provide, within constitutional limitations, for fair housing throughout the United States.

42 U.S.C.S. § 3601.

Despite numerous challenges in the years since the law was enacted, the Fair Housing Act has passed constitutional muster.

Specific Prohibitions

The law prohibits a wide range of activities. In particular, the law provides that it is unlawful:

to refuse to sell or rent after the making of a bona fide offer, or to refuse to negotiate for the sale or rental of, or otherwise make unavailable or deny, a dwelling to any person because of race, color, religion, sex, familial status, or national origin;
to discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection therewith, because of race, color, religion, sex, familial status, or national origin;
to make, print, publish, or cause to be made, printed, or published, any notice, statement, or advertisement, with respect to the sale or rental of a dwelling that indicates any preference, limitation, or discrimination based on race, color, religion, sex, handicap, familial status, or national origin, or an intention to make any such preference, limitation, or discrimination;
to represent to any person because of race, color, religion, sex, handicap, familial status, or national origin that any dwelling is not available for inspection, sale, or rental when such dwelling is in fact so available;
to discriminate in the sale or rental, or to otherwise make unavailable or deny, a dwelling to any buyer or renter because of a handicap; or
to discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection with such dwelling, because of a handicap of that person, a person residing in or intending to reside in that dwelling after it is sold, rented or made available, or any person associated with that person.

42 U.S.C.S. § 3604(a)-(f)(2).

Statutory Interpretation

In interpreting the Fair Housing Act, courts have accorded the law a broad construction in order to fully effectuate Congress’ remedial purpose. Notably, even where a practice is not clearly discriminatory, it is illegal under the law if it has a discriminatory effect.

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The Deed in a Residential Real Estate Sale

Prohibition of Discrimination in the Sale or Rental of Real Estate