Titles and Deeds Attorney
If you’re planning to purchase or sell real estate for residential or commercial purposes, it’s important to know what you’re buying, what you’re selling, and how to properly go about the transfer. An Illinois residential and commercial real estate lawyer at MacDonald, Lee & Senechalle can ensure that you utilize the right type of deed, understand your rights and obligations under the deed and upon acquiring title, and identify any encumbrances or other defects to title that can or should affect the transaction.
Title vs. Deed
“Title” and “deed” are often used interchangeably in conversation when referring to a piece of property, but they carry different legal definitions. Title is the legal term used to refer to ownership of something. In real estate, that means ownership or control over the property at issue. Title can be held by an individual, several individuals, a business, a trust, an organization, or other parties that share ownership rights.
The deed, on the other hand, is the physical document signed by someone transferring the right to the property. The deed conveys the property from one party to the other, and it must be signed by the seller/grantor.
The Right Type of Deed for Your Transaction
When you plan to acquire or transfer title to your property, it’s important to use the right type of deed. Not all deeds are created equally, and using the wrong type of deed can potentially inhibit the transaction or cloud the title. The three main types of deeds under Illinois law are as follows:
- General Warranty Deed. General warranty deeds are the most common type of deeds used when conveying title to another person. Sellers guarantee that they are selling a property free of any claims by other parties, and guarantee that they have the legal right to transfer the property. The seller agrees to defend the buyer against claims to the property.
- Special Warranty Deed. Special warranty or limited warranty deeds guarantee only that the seller did not do anything to impair the title during their tenure as owner. The deed does not guarantee that there were no pre-existing problems with the title predating the seller’s ownership. Special warranty deeds are favored by corporations and other parties who do not wish to grant the broad protections afforded by general warranty deeds.
- Quitclaim Deed. A quitclaim deed conveys the property to the grantee all the rights the grantor has in the property, without making any assurances that the title is good or free of claims. A quitclaim deed protects the seller but puts the buyer at risk of discovering some problem down the line. However, they are more simple and are often used in transactions between spouses or other non-sale transfers.
Identifying Common Encumbrances to the Property
When purchasing or selling real estate, it’s important to unearth any potential defects to the title or deed. Encumbrances affect the property owner’s rights, potentially affecting the real estate value. Depending upon the type of encumbrance, there are a number of options available to protect the property. Common encumbrances in Illinois real estate include:
- An easement is a right to limited use of the property granted to someone other than the landowner, such as if a neighbor has the right to a walkway across the property.
- An encroachment occurs when a neighboring property has an improvement built upon it that takes up part of the instant property, denying the owner use of that part of their land. An encroachment may take the form of a fence on the wrong side of the property line, for example.
- A legal claim to a portion of the value of the property in the event of sale, such as due to back taxes or a legal judgment.
- A lease means that a person other than the owner has the right to occupy the property, such as a residential tenant.
- A mortgage is a loan issued using the property as collateral.
- Restrictive covenants. A restrictive covenant is an agreement that limits the use or development of the property.
An experienced Illinois title and deeds lawyer can help you identify potential encumbrances on your property or property you intend to acquire and work with you to resolve or account for such encumbrances.
Comprehensive Advice and Representation for Your Illinois Real Estate Transaction
If you’re in need of trusted, sophisticated, and thorough legal advice and representation concerning your Chicago-area residential or commercial real estate transaction, contact the offices of MacDonald, Lee & Senechalle, Ltd. for a consultation, in Hoffman Estates at 847-310-0025, or in Des Plaines at 847-298-5030.
