Chapter 4 - § 4.1 • INTRODUCTION

• Jurisdiction: Colorado

§ 4.1 • INTRODUCTION

At English common law, transfer of title to real property was accompanied by the ceremony of livery of seisin. Under livery of seisin, the grantor of property had to transfer a physical remnant of the land to the grantee, such as a lump of dirt or a twig. Taylor v. Canterbury, 92 P.3d 961, 966-67 (Colo. 2004). The livery of seisin requirement has been explicitly abolished in Colorado. C.R.S. § 38-30-103. Today, Colorado law provides that any person entitled to hold any interest in real estate is authorized to convey the same to another by deed. C.R.S. § 38-30-101.

The ability to convey real property by deed has simplified the process, but there are requirements that must be met nonetheless. A deed must: (1) have a grantor and a grantee; (2) describe the property conveyed; (3) reflect the intent of the grantor to make a present conveyance of the property; and (4) be supported by consideration. A deed is not effective unless it is executed, delivered, and accepted. In construing deeds, courts will seek to enforce the intent of the parties, but it is incumbent upon the drafter of a deed to clearly spell out the intent within the four corners of the deed. As stated by one court: "'We are . . . in accord with the more modern rule, which holds in effect that, in considering written instruments, courts should seek for and give effect to the actual intent of the parties, when such intent is manifest. . . .' The question then recurs: What was the intent or purpose of the grantor in the execution and delivery of this deed?" Moore v. Second Congregational Church of Colorado Springs, 175 P.2d 90, 91 (Colo. 1946) (citing Millage v. Churchill, 69 Colo. 457, 195 P. 107, 108 (1921)). The goal in drafting a deed is to state the intent plainly enough that a court is not required to ask and answer this question.

§ 4.1.1—Deed Structure

There are typically four primary parts to a deed: a granting clause, a habendum clause, a warranty clause, and a testimonium. The most important is the granting clause, which identifies the parties and the property and includes the language necessary to convey the property. "The purpose of a granting clause is 'to define and designate the estate conveyed.'" O'Brien v. Vill. Land Co., 794 P.2d 246, 251 (Colo. 1990) (quoting Kynerd v. Hulen, 5 F.2d 160, 161 (5th Cir. 1925)). The habendum clause, being the part of the traditional deed that starts out "to have and to hold," is not required in Colorado under C.R.S. § 38-30-113. However, if it is used, it will affirm the estate granted or create limitations. See Black's Law Dictionary, 728-29 (8th Ed. 1999); Mitchell v. Espinosa, 243 P.2d 412, 414-15 (Colo. 1952) (50 percent of oil rights were reserved by an exception stated in the habendum clause). Likewise, under C.R.S. § 38-30-113, a warranty clause is not required to convey fee simple title because a quitclaim deed and a bargain and sale deed contain no warranty.

§ 4.1.2—Parties And Property

A deed must have a grantor. McGrew v. Lamb, 60 Colo. 462, 463, 151 P. 91, 91 (1915) ("It is axiomatic that to every deed there must be at least two parties: one capable of conveying and one capable of receiving."). The deed should also name the grantor in the body of the deed. A person who signs a deed in which he or she is not named as a grantor may not be bound by the deed. 26A C.J.S. Deeds § 44.

The best practice is to repeat the name of the grantor in precisely the same form as used in the deed by which the grantor acquired title. The grantor should be identified in the same way in which he or she holds title to assure that the deed, when recorded, will be constructive notice of the conveyance. Franklin Bank, N.A. v. Bowling, 74 P.3d 308 (Colo. 2003). The court in Bowling noted that "Slight deviations are generally held to be immaterial . . . as substantial identity in given names is all that is necessary." Id. at 314 (quoting R.G. Patton, Priorities, Recording, Registration, in IV American Law of Property § 17.18 n. 7 (A. James Casner ed., 1952)). Moreover, the law expressly allows some name variances between instruments affecting title to real property without impacting the validity of the conveyance or impairing the presumption that the person named is the same person in both instruments. See C.R.S. § 38-35-116. The following variances are allowed: (1) full first name appearing in one and only the initial letter of the first name appearing in the other; (2) a full middle name appearing in one and only the initial letter of the middle name appearing in the other; (3) the initial letter of a middle name appearing in one and not in the other; and (4) the full middle name appearing in one and not the other. C.R.S. § 38-35-116. Despite the flexibility the law allows, it is best to use care in identifying the parties to a deed to avoid uncertainty and disputes.

A person who has changed his or her name since acquiring real property may continue to deal with the property in the name in which title was acquired, notwithstanding the change. There are also various ways the name change may be shown in the real estate records. See Colorado Bar Association, Colorado Real Estate Title Standards, Standard No. 9.1.2 (2017).

It is also essential to name a grantee. A deed delivered in blank as to grantee conveys no title, and a subsequent delivery of the deed to another party without insertion of grantee's name does not transfer title. McGrew v. Lamb, 154 P. 91, 92 (Colo. 1915). On the other hand, a deed is valid when executed with blanks for insertion of grantee's name, given to an agent, and subsequently filled in and delivered by the grantor's agent. Halliwill v. Weible, 64 Colo. 295, 300, 171 P. 372, 374 (1918). See Colorado Bar Association, Colorado Real Estate Title...