Hawaii Quitclaim Deed Form
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What Is a Hawaii Quitclaim Deed Form?
Hawaii law authorizes several types of deeds with varying guarantees of the quality and status of the transferred property’s title. A Hawaii quitclaim deed is a deed that transfers property with no guarantee—or warranty of title. The new owner receives the entire interest the current owner can lawfully transfer. The current owner does not promise a good, clear title or that the deed will transfer actual ownership of the property.
Hawaii has no statutory quitclaim deed form or code section specifically governing quitclaim deeds. Hawaii quitclaim deeds are governed by common law and Hawaii’s general rules for deeds.
What Is Warranty of Title?
Warranty of title is a guarantee a property owner gives when transferring real estate. It typically consists of a few promises—called covenants of warranty or covenants of title.1 An owner (or grantor) who transfers Hawaii real estate with complete warranty of title promises that:
- The current owner holds valid legal title to the property.
- The property’s title is subject to no encumbrances—such as liens, mortgages, or assessments—not excluded by the deed.
- The current owner has the right to transfer the property to the new owner.
- The current owner will stand behind the transferred title and defend the new owner’s interest against any third-party claims.
A deed with warranty of title reduces the new owner’s risk of financial loss if there is a problem with the property’s title. The new owner can sue the prior owner for breach of covenant—similar to a breach of contract claim—if a problem arises.2 If the new owner discovers a lien on the property’s title, for example, the new owner can recover from the prior owner the cost of removing the lien.3
Warranty of Title and Hawaii Quitclaim Deeds
A Hawaii quitclaim deed transfers property with no warranty of title. The deed gives the new owner whatever interest the transferor owns in whatever condition it is. The new owner cannot sue the transferor for breach of covenant if the deed transfers a flawed or invalid title to the property.
Hawaii quitclaim deeds have the capacity to transfer complete legal ownership—the same as other types of deeds. A quitclaim deed just offers no guarantee of what interest the transferor actually holds or what (if anything) the new owner will receive.
Other Names for a Hawaii Quitclaim Deed Form
Hawaii court decisions and state rules prefer the name quitclaim deed—sometimes called simply a quitclaim—for deeds transferring real estate interests with no covenants of title.4 The following variations are also acceptable:
- Quit claim deed;
- Quit-claim deed;
- Deed of quitclaim.
The word quitclaim also refers to the act of transferring a real estate interest without warranty. Hawaii quitclaim deems often indicate that the current owner remises, releases, and forever quitclaims his or her interest to the new owner.
While quitclaim deed is the most common name nationally, some states use the following synonyms instead of—or in addition to—quitclaim deed:
- Release deed;5
- No warranty deed;
- Deed without warranty;
- Quitclaim deed without covenant (in states where a quitclaim deed includes one or more implied covenants of warranty).6
How Do Hawaii Quitclaim Deed Forms Relate to Other Forms of Deeds?
A Hawaii quitclaim deed passes to the new owner whatever interest the transferor has in the real estate—without implying that the transferor in fact holds an interest. The risk of problems with the property’s title—or that the transferor holds no title at all—rests squarely with the new owner.
Other Hawaii deed forms come with a complete or partial guarantee that the transferor holds valid and clear title. Warranty deeds and special warranty deeds keep at least some title risk with the current owner and may be considered “more attractive” from the new owner’s perspective.7
Hawaii Warranty Deeds
A Hawaii warranty deed—or general warranty deed—transfers real estate with complete warranty of title. The current owner guarantees the new owner will receive valid ownership, with no undisclosed title problems. The current owner must take responsibility for any title problems that arise—including by compensating the new owner for financial damages a problem causes. A new owner who receives an invalid or clouded title through a warranty deed can sue the transferor for breach of covenant or breach of warranty.8
A warranty deed’s warranty covers potential issues throughout the property’s entire chain of title. The current owner bears the risk of all title problems not specifically excluded up to the date of the deed.
Hawaii Special Warranty Deeds
A Hawaii limited warranty deed transfers real estate with a limited warranty of title. The warranty is limited because it only extends to the period while the current owner held title. The current owner and new owner therefore share the risk of title problems—depending on when a specific problem arose.
The current owner guarantees when signing a special warranty deed that there are no title problems caused by anything the current owner did (or failed to do). The current owner must take responsibility for title problems—but only to the extent the problem arose while the current owner held title.
Title Insurance and Hawaii Quitclaim Deeds
Title problems can cause a property owner significant financial loss. An owner who takes title through a quitclaim deed accepts 100 percent of the financial risk. An owner can shift the financial risk of title problems to an insurance company by purchasing title insurance.
A title insurance policy is a contract with an insurance company covering financial loss caused by title problems that exist—but are not yet known—on the date the policy is issued.9 Title insurance can protect a property owner against issues like:
- Liens, mortgages, unpaid assessments, or delinquent property taxes;
- Inability to sell a property due to an error in an earlier deed or gap in the chain of title;
- Boundary disputes that decrease the property’s value; and
- Third-party claims of superior title.
Quitclaim Deeds and Other Hawaii Deeds Used in Estate Planning
Quitclaim deeds, warranty deeds, and special warranty deeds are named for the warranty of title they provide. Each of the three transfers property as soon as the deed is signed and recorded. Hawaii’s estate-planning deeds are named for their functions and designed to transfer property outside probate when the owner dies.
- Hawaii transfer-on-death deed. A Hawaii transfer-on-death deed—or TOD deed—conveys title to one or more beneficiaries when the owner dies.10 An owner signs and records a TOD deed during life, but the deed has no legal effect until death.11 As long as the owner remains living, he or she retains complete title and has the right to revoke the TOD deed or sell the property.12
- Hawaii life estate deed. A life estate deed gives one person (the life tenant) ownership of property for life and another person (the remainderman) a vested right to future possession when the life tenant dies.13 A property owner who creates a life estate deed for an estate plan typically reserves the life estate to him or herself and names a family member as remainderman. An owner can no longer transfer complete title after recording a life estate deed unless the remainderman agrees to the transfer.
Common Uses of Hawaii Quitclaim Deed Forms
The most common use of Hawaii quitclaim deeds is to transfer title to real estate for no consideration. That typically means transferring property to a family member or retitling property without changing actual possession. A property owner might use a Hawaii quitclaim deed for any of the following objectives:
- Create a joint tenancy. A sole property owner can record a quitclaim deed to the owner and another person to create a joint tenancy with right of survivorship or other form of co-ownership.14
- Deed to trust. An owner can transfer property to a living trust using a quitclaim deed. Hawaii law lets tenants by the entirety retain the asset-protection benefits of tenancy by the entirety when transferring real estate to a joint revocable living trust.15
- Transfer to a business entity. A Hawaii quitclaim deed can transfer title from a property owner to a business entity controlled by the owner.16
- Transfer to a family member. A property owner can use a quitclaim deed to transfer real estate to the owner’s child for no or nominal consideration.17
- Divorce. Former spouses can use a quitclaim deed to divide the couple’s marital property following a divorce.18
How to Create a Hawaii Quitclaim Deed
A Hawaii quitclaim deed must comply with all Hawaii rules that apply to deeds generally and should make clear that the transferor offers no covenants or warranty of title.
Hawaii Quitclaim Deed Requirements
A quitclaim deed must indicate that the transferor intends to convey his or her interests to the new owner without warranty. A Hawaii quitclaim deed typically states that the current owner remises, releases, and forever quitclaims the property to the new owner. The Hawaii Revised Statutes do not include form language for quitclaim deeds.
Quitclaim deeds should be titled Quitclaim Deed and must omit language suggesting covenants of title or a warranty.
Hawaii General Deed Requirements
All Hawaii deeds—including quitclaim deeds—must satisfy Hawaii’s general deed rules. The general rules deal with formatting, required information, and signing requirements—including, for example:
- Paper size and margins;19
- Identifying information for the parties and a property description;20 and
- The transferring owner’s notarized signature.21
Selecting a Hawaii Quitclaim Deed Form
Each state’s real estate laws governing deeds are unique, and state rules can vary substantially between states. A Hawaii quitclaim deed form must be tailored to Hawaii real estate law. A quitclaim deed created for another state may be ineffective in Hawaii, ineligible for recording, or lead to unintended legal consequences.
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- See Makainai v. Goo Wan Hoy, 14 Haw. 280 (1902).
- Utsunomiya Ent. v. Moomuku Ctry. Club, 879 P.2d 501 (Sup. Ct. Haw. 1994).
- Makainai v. Goo Wan Hoy, 14 Haw. 280 (1902).
- See, e.g., Hawaii Rev. Stat. § 28-516-9, Kekona v. Abastillas, 150 P.3d 823 (Haw. 2006).
- See, e.g., Whitt v. Whitt, No. 02-CA-93 (Ohio Ct. App., 2003); Henningsen v. Stromberg, 221 P.2d 438 (Mont. 1950).
- See, e.g., S.D. Cod. Laws § 43-25-11, 33 Maine Rev. Stat. § 765.
- Sigwart v. U.S. Bank, No. 14-16346 (9th Cir. Nov. 8, 2017) (unpublished).
- Utsunomiya Ent. v. Moomuku Ctry. Club, 879 P.2d 501 (Sup. Ct. Haw. 1994).
- Hawaii Rev. Stat. § 431-20-102(3).
- Hawaii Rev. Stat. § 28-527-5.
- Hawaii Rev. Stat. § 28-527-12.
- Hawaii Rev. Stat. § 28-527-11.
- See Meheula v. Hausten, 29 Haw. 304, 316 (Haw. 1926).
- Hawaii Rev. Stat. § 28-509-2.
- Hawaii Rev. Stat. § 28-509-2(b).
- See Hawaii Rev. Stat. § 28-501-105.
- See Hawaii Rev. Stat. § 14-247-3(4).
- See Balogh v. Balogh, No. SCWC–11–0001074 (Sup. Ct. Haw., 2014).
- Hawaii Rev. Stat. § 28-502-31.
- Hawaii Rev. Stat. § 28-502-31(e).
- Hawaii Rev. Stat. §§ 28-502-41, 28-502-31(e).