Some of the disputes related to Texas real estate require a determination of WHEN an interest in real property was transferred. Many lawsuits have been fought over the determination of exactly when the title was conveyed. The resolution of that issue can have tremendous implications.
Under Texas law, a conveyance of an interest in real property must meet the following criteria:
- Be in writing
- Be signed by the grantor, and
- Be delivered to the grantee.
There is no requirement that a deed be recorded to make it effective. This is because, in the state of Texas, a deed does not have to be recorded to convey title. It is not the act of filing or recording a deed that conveys title, but rather, a conveyance is effective and title is conveyed when a signed deed has been delivered to the grantee.
What constitutes “delivery” of a deed is a question of law for the Court to decide. Whether there has been a delivery of a deed may in fact be a question that will be determined by a jury.
In general there are two factors that determine whether “delivery” has occurred. They are: 1) the deed must be delivered to the control of the grantee, and 2) the grantor must intend the deed to become effective as a conveyance of real property. In the end, the question of whether a deed has been delivered is primarily one of the grantor’s intent. The intent of the grantor is determined by examining all the facts and circumstances preceding, attending, and following the execution of the deed.
Litigating the effective date of a conveyance, and trying to prove that a deed’s effective date pre-dates the date of recording are complex legal issues. The facts and circumstances surrounding the execution and delivery of every deed can be very different. If you have a lawsuit that requires a determination of the actual delivery date of a deed, you need to contact an attorney that has experience in litigating title to real estate.
Susan J. Taylor is a Houston-based commercial litigation and business law attorney. She began practicing law in Texas in 1985 with a primary concentration in business, real estate, and commercial litigation and bankruptcy. Ms. Taylor is Board Certified in Civil Trial Law by the Texas Board of Legal Specialization. For expert help with commercial litigation or business law issues, please contact The Taylor Law Group for a consultation.