What Types of Deeds Are Recognized in North Dakota?
- Warranty deeds;
- Special warranty deeds; and
- Quitclaim deeds.
The main difference between the three North Dakota deed forms is the guarantee of the property’s ownership status—called warranty of title or covenants of title—that each form provides. Warranty of title protects the new owner against problems with the property’s title that affect its value or marketability. The current owner who signs a deed with warranty of title promises a good, undisputed title subject to no undisclosed encumbrances—such as unpaid liens, assessments, property taxes, and comparable claims against the property.2
Among other things, an owner who warrants that a transferred property is free of encumbrances agrees to be liable for the cost of clearing an undisclosed lien or mortgage from the property’s title.3
North Dakota Quitclaim Deed Form
A North Dakota quitclaim deed form transfers real estate with no covenants or warranty of title—giving the new owner the least protection against title problems. A quitclaim deed is just as effective to transfer the current owner’s title as other deeds.4 It simply does so with no guarantee as to the title’s validity or the presence of liens or other encumbrances.
The new owner who takes title through a quitclaim deed bears all the risk of unknown issues with the property’s title. Quitclaim deeds are often used when no consideration is given for the property—such as a deed created in a divorce settlement or used to retitle the property without affecting actual control.5
North Dakota Warranty Deed Form
A North Dakota warranty deed form—or sometimes called a general warranty deed—is the opposite of a quitclaim deed in risk-allocation terms. The current owner provides complete warranty of title and agrees to be financially responsible for any unknown problems with the property’s title.6
A North Dakota property owner who signs a warranty deed generally provides five covenants of warranty to the new owner—though an individual deed can modify the warranty or exclude certain conditions from the warranty’s scope:
- Covenant of seizin. The current owner holds complete title to the property.
- Covenant of quiet enjoyment. The new owner’s ownership will not be lawfully disturbed.
- Covenant against encumbrance. The property is subject to no undisclosed liens, mortgages, or other encumbrances.
- Covenant of general warranty. The current owner will defend the transferred title against any legal claims asserted by third parties.
- Covenant of further assurance. The current owner will sign any future documents or perform any future acts necessary to perfect the new owner’s title.7
North Dakota Special Warranty Deed Form
A North Dakota special warranty deed form divides the risk of unknown title problems between the current owner and the new owner.8 The current owner agrees to be responsible for any title problems that arose while the current owner held title. The new owner bears the risk for issues rooted earlier in the property’s chain of title.
A North Dakota property owner typically provides two covenants of warranty when signing a special warranty deed:
- The current owner has not transferred the real estate interest to any other person prior to signing the deed.
- The real estate is free from any encumbrance derived from the current owner’s ownership of the real estate.9
As with a warranty deed, the parties to a special warranty deed can agree to modify the precise warranty language or exclude identified items from the warranty.
Special warranty deeds also go by the names grant deed and limited warranty deed.
What Types of Estate Planning Deeds Are Used in North Dakota?
Estate planning deeds allow property owners to name a beneficiary to receive property when the owner dies. North Dakota law recognizes transfer-on-death deeds and life estate deeds—both of which keep possession with the owner during life and transfer title outside probate at the owner’s death.
North Dakota Transfer-on-Death Deeds
A North Dakota transfer-on-death deed form—or TOD deed—designates a beneficiary to receive real estate when the owner dies without limiting the current owner’s rights in the property.10 The property owner must record the TOD deed during life, but the beneficiary has no actual rights in the property for as long as the owner is living.11 The owner can revoke the TOD deed or sell the property at any point until death.12
North Dakota Life Estate Deeds
A North Dakota life estate deed form gives a beneficiary—or remainderman—a vested right to possess the real estate in the future.13 A property owner who records a life estate deed typically reserves the life estate—retaining ownership of the property for the rest of the owner’s life.14 The owner controls the property for life but cannot do anything to impair the remainderman’s future interest.15 After recording a life estate deed, the owner can no longer transfer or sell complete ownership of the property—though the owner can sell the life estate.16
What Are the Ways in Which Multiple Owners Can Jointly Own North Dakota Real Estate?
Tenancy in Common
Tenancy in common gives each co-owner a separate, independently transferable interest in the real estate. The interest held by a co-owner—or tenant in common—is a percentage or fraction of the property’s complete title. A tenancy in common interest becomes part of a co-owner’s probate estate. Heirs or beneficiaries named in a will therefore receive the interest when the owner dies.
Tenancy in common is the default co-ownership form in North Dakota and most other states. A deed transferring North Dakota real estate to two or more new owners creates a tenancy in common unless the deed states that the new owners are taking title for partnership purposes or as joint tenants with right of survivorship.18
A North Dakota joint tenancy gives co-owners a right of survivorship—which means a deceased joint tenant’s interest vests in the surviving owner. A joint tenancy interest never becomes part of a co-owner’s estate—passing instead to the surviving owner outside of probate.19
Joint tenants share a concurrent undivided interest in the whole property—rather than separate, fractional interests. A North Dakota deed that creates a joint tenancy must expressly declare that the new owners take title as joint tenants with right of survivorship or similarly indicate that they will own the property in joint tenancy.20
North Dakota also recognizes that two or more persons may hold title to real estate in partnership. Co-owners own real estate as partners when they acquire property in a partnership capacity for partnership purposes.21 This usually means the owners are engaged in a partnership not registered as a separate legal entity and agree to take title to the property in furtherance of the partnership. A partnership registered with the secretary of state—such as a limited partnership or limited liability partnership—typically holds title to real estate in the entity’s name.
Tenancy by the Entirety
Another common law ownership form possible only for married spouses—tenancy by the entirety—is not recognized in North Dakota. Where it is permitted, tenancy by the entirety has a right of survivorship like joint tenancy and provides additional asset-protection benefits.
Real Estate Ownership through Trusts
A revocable living trust is another option multiple individuals can use to hold title to North Dakota real estate. They must first form the trust by preparing a written trust instrument declaring the trust’s terms.22 The same individuals can be (1) a trust’s co-trustees who hold legal title and control the property and (2) the trust’s beneficiaries who enjoy the benefits of the property.23
After the trust is created, the current property owner records a deed conveying the property to the trust. North Dakota deeds to trusts typically name the trustee, in the trustee capacity, as the new owner. A deed naming the trust itself as the new owner is valid if the trustee’s identity can be determined from the deed or another recorded instrument.24
What Are the Rules for Spousal Ownership of North Dakota Real Estate?
North Dakota has special rules giving married persons certain rights in their spouses’ property. A North Dakota property owner should consider spousal homestead rights and inheritance rights when titling real estate and preparing an estate plan.
North Dakota Homestead Rights
North Dakota law gives special protections to homesteads—defined as the land on which a property owner resides, the dwelling house on that land, and any other structures on the property.25 Along with protecting homesteads against creditors, North Dakota requires both spouses to join in a transfer of the family’s homestead—even if only one spouse formally holds title.26 Thus, a deed transferring a North Dakota homestead owned by a married individual must include the signatures of both spouses.
Spousal Intestate Share
A surviving spouse has a right to an intestate share in the estate of a deceased spouse who leaves no will. A surviving spouse’s intestate share under North Dakota law depends on the deceased spouse’s other potential heirs.27 The surviving spouse receives the entire estate if (1) the deceased spouse has no surviving parents or descendants (i.e., children or grandchildren), or (2) both spouses have only descendants who are also descendants of the other.
If neither of the above is true, the surviving spouse receives:
- $300,000.00, plus three-fourths of the balance if there is a surviving parent but no surviving descendants;
- $225,000.00, plus one-half of the balance if the deceased spouse’s descendants are all also the surviving spouse’s descendants but the surviving spouse has other descendants; or
- $150,000.00, plus one-half of the balance if the deceased spouse has descendants who are not the surviving spouse’s descendants.
Spousal Elective Share
The surviving spouse of a North Dakota resident who leaves a will receives the share under the will or may claim an elective share if the will provides for a lesser amount.28 North Dakota’s elective share amount is 50 percent of the “augmented estate”—which includes probate assets plus the value of some property transferred outside probate and some of the surviving spouse’s assets.29
Where Are Deeds Filed in North Dakota?
All North Dakota counties have a county recorder whose duties include keeping the county’s land records.30 A North Dakota deed is filed for recording in the county where the property is located.
Upon receiving and accepting a filed deed, the recorder assigns the deed a document number and records the deed in the county’s land records.31 The effect of recording a North Dakota deed is to provide constructive notice of the deed’s contents to all persons.32
Older laws that refer to a county’s “register of deeds” are treated as though they refer to the county recorder.33
Does North Dakota Allow Electronic Recording?
The North Dakota Legislature has authorized electronic recording of deeds and other written documents.34 North Dakota counties that have adopted electronic recording (eRecording) programs accept deeds filed electronically through third-party vendors—which may require an additional recording fee. Counties with eRecording continue to accept documents filed in paper format.
What Is the Cost to File a North Dakota Deed?
County recorders charge $20.00 to record a deed containing up to six pages or $65.00 for deeds over six pages.35 A deed over 25 pages incurs an additional fee of $3.00 per page for each page over 25. Deeds that require indexing of more than 10 sections of land require an additional $1.00 for each section over 10.
Does North Dakota Charge a Transfer Tax for Real Estate Transfers?
No, North Dakota is among the quarter of states that charge no transfer tax or equivalent tax for transferring title to real estate.
Does North Dakota Require Any Additional Forms When Recording a Deed?
No, North Dakota requires no additional forms when recording a deed. The new owner must certify on the face of the deed either (1) the full consideration paid for the property or (2) the reason the deed is exempt from the disclosure.36
- N.D. Cent. Code § 47-10-01.
- N.D. Cent. Code § 47-10-13.
- N.D. Cent. Code § 47-10-18.
- See N.D. Cent. Code § 47-10-15.
- See, e.g., N.D. Cent. Code § 47-10-23.
- N.D. Cent. Code § 47-10-04.
- N.D. Cent. Code § 47-10-04.
- See N.D. Cent. Code § 47-10-06.
- N.D. Cent. Code § 47-10-19.
- N.D. Cent. Code § 30.1-32.1-09(1).
- N.D. Cent. Code § 30.1-32.1-09(2).
- N.D. Cent. Code § 30.1-32.1-06.
- N.D. Cent. Code § 47-04-10.
- N.D. Cent. Code § 47-04-21.
- N.D. Cent. Code § 47-02-33.
- N.D. Cent. Code § 47-10-09.
- N.D. Cent. Code § 47-02-05.
- N.D. Cent. Code § 47-02-08.
- See N.D. Cent. Code § 47-19-06 (describing survivorship procedure for formally titling property with surviving joint tenant).
- N.D. Cent. Code § 47-02-06.
- N.D. Cent. Code § 47-02-07.
- N.D. Cent. Code §§ 59-09-03(25); 59-12-18.
- See N.D. Cent. Code § 59-12-02.
- N.D. Cent. Code § 47-19-42.1.
- N.D. Cent. Code § 47-18-01.
- N.D. Cent. Code § 47-18-05.
- N.D. Cent. Code § 30.1-04-02.
- N.D. Cent. Code § 30.1-05-01.
- N.D. Cent. Code § 30.1-05-02.
- N.D. Cent. Code § 11-18-01.
- N.D. Cent. Code § 11-18-09.
- N.D. Cent. Code § 47-19-19.
- N.D. Cent. Code § 11-18-01.1.
- See N.D. Cent. Code §§ 9-16-01, et seq.
- N.D. Cent. Code § 11-18-05(1).
- N.D. Cent. Code § 11-18-02.2(1).