||Thinking about buying or selling real estate in Delaware? Set aside some time to review Title 25 of the Delaware Code (2013) and become familiar with the laws governing real estate deeds.
Delaware allows any person of at least 18 years old to buy or sell real estate (25 Del. C. 25§ 312). There is no statutory residency restriction; anyone meeting the age requirement may buy and sell real property, regardless of domicile or citizenship (§ 306).
Use deeds to transfer real estate titles in Delaware (25 Del. C. § 101.) Lawful deeds must contain specific language and content (§ 121(a), (b):
- Signing (execution) date
- Full name, marital status, and address of all grantors (sellers). If the grantor is married, the spouse might need to sign the deed to relinquish any marital property rights (§ 310).
- Full name and address of all grantees (buyers) (§ 133). For two or more grantees, identify the vesting choice (manner of holding title)
- Amount of consideration (something of value, usually money, paid for the property)
- Complete legal description of the property
- County assessor’s ID for the property (96 Del. C. § 9605(f)).
- Grantor’s signature
- Grantee’s signature as acknowledgement or witness (optional) (25 Del. C.§ 122)
- Acknowledgement of notary or other officer authorized to administer oaths (§ 122), (123)
- “Prepared by” statement on the first page, including the name and address of the individual who prepared the deed (96 Del. C. § 9605(h)).
Delaware’s statutes define the ways in which two or more owners may hold title to property
(25 Del. C. § 311). There are two choices: tenancy in common and joint tenancy with right of survivorship. Make this decision carefully – both options have significant benefits and drawbacks.
Tenancy in common allows multiple owners to act independently of one another, with unrestricted freedom to convey his or her portion of property rights. The property rights may be divided into equal or unequal shares. If a co-owner dies, that share goes to the owner’s estate and is distributed via probate. Tenancy in common is assumed unless another vesting choice is specified in the deed’s granting clause.
The other option for co-owners of Delaware real estate is joint tenancy. With this form of ownership, the joint tenants share full title to the property. If one decides to sell his or her share, the joint tenancy breaks and becomes a tenancy in common. One useful feature of joint tenancy is the right of survivorship, which means if a joint tenant dies, the deceased’s title rights are redistributed to the survivors by operation of law, with no need for probate. This form of ownership is not automatic, and must be created in the deed’s granting clause. For example, “AA grants and conveys to BB, CB, and DB as joint tenants with right of survivorship, and not as tenants in common” (25 Del. C. § 701).
The basic statutory deed form includes the words “grant and convey” 25 Del.C. § 121(b). This language operates as a special warranty from the grantor to the grantee, promising to “pass and convey to the grantee therein and to his heirs and assigns the fee simple title or other whole estate or interest which the grantor could lawfully convey in and to the property therein described together with the tenements, hereditaments, franchises and appurtenances thereunto belonging, and the reversions and remainders, rents, issues and profits thereof” with protection from “the grantor and the grantor's heirs and all persons claiming under the grantor or them.”
In addition to the requirements identified above, each of Delaware’s three counties has defined specific formatting requirements for deeds and other instruments conveying ownership in land. Ensure that the deed is set up properly before submitting it for recordation (96 Del. C. § 9605(g)).
Include a county-specific affidavit of residence and gain and tax form, or the recorder may refuse to record the deed (96 Del. C. § 9605(d), (e), (i)).
Delaware law requires the recording of each transfer of real property (96 Del. C. § 9605). Entering the transfer into the public record provides constructive notice to future buyers about the property’s ownership status. Constructive notice is based on the expectation that before completing something, a real estate transaction in this case, the interested parties should search publicly available information to verify the relevant details.
Delaware follows a race recording act, which states that a “deed concerning lands or tenements shall have priority from the time that it is recorded in the proper office without respect to the time that it was signed, sealed and delivered” ((25 Del. C. § 153). Present the deed to the recorder for the county where the land is located. If the land’s perimeter includes property in more than one county, record the deed in each county where a portion of the property sits
(§ 152). This means if the same parcel of land is deeded to different people, the first owner to record the deed keeps the property. As such, record an executed deed quickly, even on the same day it’s signed (§ 156). The recorder’s office will mark it with the official date and time it was accepted (96 Del. C. § 9606).