REAL ESTATERead the
WARNING! first.
ARIZONA REAL ESTATE Arizona real estate law is a combination of the English "common law" (developed during feudal times in England) and statutory law enacted by the Arizona legislature. There are several distinct areas of real estate law including conveyancing, landlord-tenant, real estate financing and title insurance. Deeds to Arizona real property must be in a certain form to be valid. There are certain requirements and formalities for the words of conveyance, for the signature, for the size of the paper used, and the margins on the page. Every deed or conveyance of real property must be signed by the grantor and must be duly acknowledged before some officer authorized to take acknowledgments. There are many different types of deeds commonly used in Arizona real estate transactions. Mortgages are used less frequently than deeds of trust as security or collateral. Mortgages require judicial foreclosure while deeds of trust use a power of sale to accomplish the same result. A common error made by many people is to refer to a "quit claim" deed as a "quick claim" deed. In Arizona, as elsewhere, there is no such thing as a "quick claim" deed. A warranty deed is a deed where the person granting the deed agrees to defend the title from claims of others. There are two (2) main forms of warranty deed, each with its own sphere of protection. General Warranty Deed A general warranty deed warrants the title to the grantee as against all persons. This is the best form of warranty deed for a grantee to obtain and offers the most protection of any form of deed. A general warranty deed conveys all of the grantor's interests in and title to the property. It also warrants that if the title contains a defect, known as a "cloud," (such as a mortgage, a tax liens a judgment, or a mechanic's lien) the grantee may hold the grantor liable. Special Warranty Deed A special warranty deed, instead of warranting the title as against all persons, merely warrants the title against claims that arose during the period the grantor held title to the property. A special warranty deed guarantees that the grantor has done nothing during the time he held title to the property which has, or which might in the future, affect the grantee's title. A quit claim deed transfers whatever interest the grantor may have, without warranty of any kind. Such a deed makes no warranties as to the title, but simply transfers to the buyer whatever interest the grantor has, if any. Beneficiary Deed A relatively recent creature of Arizona law is the beneficiary deed. This form of deed transfers no present interest to the beneficiary named in the deed. Instead, the beneficiary receives and interest upon the death of the grantor. The beneficiary deed allows a person to transfer a future interest in the property while maintaining control over the property. The beneficiary deed avoids the need for probate. A grantor may revoke a beneficiary deed at any time. There are advantages and disadvantages to using a beneficiary deed. Problems can arise when the beneficiary is a minor or when there are multiple beneficiaries. Joint tenant situations also create potential problems involving the use of a beneficiary deed. Deed of Trust In Arizona, deeds of trust are creatures of statute. Deeds of trust are used in place of mortgages and are favored by lenders because no "foreclosure" is required, no lawsuit is usually required and the property can be transferred to the lender in the event of a default much faster and at less expense than if a mortgage was used. The owner of the property, called the "trustor" transfers ownership to a "trustee" (usually a title company) who holds title for the benefit of the a "beneficiary" (lender). When the trustor pays the debt secured by the deed of trust the trustee reconveys the property to the trustor. If the trustor defaults, the trustee schedules a trustee's sale and sells the property to the highest bidder. The trustee then issues a trustee's deed to the successful bidder. When there are conflicting claims to real property a lawsuit can be filed to obtain a judicial declaration of the ownership and interests in the property. This is known as a quiet title action. Attorney's fees can be awarded pursuant to an Arizona statute if a person is given a proper opportunity to acknowledge that the person has no interest in the property and fails to do so within a specific time period. For assistance with Arizona real estate issues, contact us. |
