What Is a West Virginia Quitclaim Deed?
West Virginia real estate owners can transfer ownership by signing and recording a deed.1 A quitclaim deed is a specific deed form that transfers whatever claim or interest the signer has in the property without guaranteeing the property’s title is clear or valid.2 The new owner (the grantee) receives whatever interest the current owner (the grantor) has the power to give. But the current owner does not promise that he or she has undisputed ownership of the property.
Quitclaim deeds are often good for transfers involving no consideration—payment or value provided in exchange for the transfer. The current owner is less likely to provide warranty of title when the new owner is not paying for the real estate. The lack of warranty of title is what sets quitclaim deeds apart from most other deeds.
What Is Warranty of Title?
Warranty of title is a legal guarantee that a deed transfers valid title free of title defects. Title defects are title issues that lower a property’s market value. A title defect affecting a property might be an unpaid lien or mortgage, an unclear chain of title caused by an error in an earlier deed, or another ownership claim on the property.3 Fixing a title defect can require anything from paying off a lien or suing over a boundary dispute to giving up possession of real estate to someone with a more valid claim on the property.
Covenants of Title
Warranty of title traditionally consists of a series of promises—called covenants of title—from the current owner to the new owner. A property owner who warrants a property’s title guarantees that the title legally rests with the current owner and is not damaged by hidden title defects. The current owner promises that—if a problem with the property’s title arises—the current owner will be responsible for resolving it. The new owner can sue the current owner for damages caused by a title defect covered by the warranty.4
Warranty of Title and West Virginia Quitclaim Deeds
Quitclaim deeds provide no warranty of title. The current owner does not guarantee a good, clear title. The new owner is responsible for resolving any title defects. The new owner gets whatever title the current owner has in whatever condition it happens to be in.
The lack of a warranty does not mean real estate transferred by quitclaim deed has title defects. It does not necessarily mean the current owner thinks the deed transfers a flawed title. It just means the person signing the deed makes no promises one way or the other.
Other Names for a West Virginia Quitclaim Deed Form
The most common name for West Virginia deeds that transfer real estate with no warranty of title is quitclaim deed. The term is sometimes written as quit claim deed—particularly in older usage. West Virginia quitclaim deeds use both quit claim and quitclaim as verbs. For example, “the grantor . . . doth remise, release, and forever quit claim unto the grantee”5 Quick claim, however, is not an actual legal term.
There are a couple of other terms for quitclaim deed used mostly in other states:
- Release deed. Quitclaim deeds are sometimes called release deeds because the current owner is releasing his or her rights in the real estate to the new owner.6 West Virginia lawyers and courts rarely use release deed.
- Deed without warranty and no-warranty deed. A small number of states—not including West Virginia—have quirks in their real estate laws that make lawyers and title insurance companies want to avoid a document titled quitclaim deed. A property owner there can record a deed without warranty or no-warranty deed to achieve the same result—that is, to transfer property with no warranty of title.7
How Do West Virginia Quitclaim Deed Forms Relate to Other Forms of Deeds?
Quitclaim deeds place the risk of unknown title defects totally on the new owner. A property owner who transfers real estate with a quitclaim deed avoids risk by not guaranteeing a good, clear title. The person receiving real estate transferred by quitclaim deed accepts all the risk of unknown title defects.
West Virginia recognizes two other types of deeds that, by definition, keep some or all risk with the current owner:
- West Virginia general warranty deeds. A West Virginia general warranty deed form—sometimes just called a warranty deed—transfers real estate with complete warranty of title.8 The current owner stands behind the deed and bears all risk of title defects. Any defect not clearly excluded is within the warranty’s scope—no matter when the defect arose in the property’s chain of title.
- West Virginia special warranty deeds. A West Virginia special warranty deed form provides limited warranty of title.9 The current owner and the new owner both bear some risk—depending on when the defect arose. A title defect rooted in events that occurred while the current owner held title is the current owner’s responsibility. A title defect that arose before the current owner owned the property is outside the scope of a limited warranty.
West Virginia law allows a lot of freedom in how a deed’s warranty is worded. The parties can tailor the warranty to their agreed terms—for example, by excluding certain issues or expanding the warranty’s scope.10
Title Insurance and West Virginia Quitclaim Deeds
Title insurance shields a property owner from the risk of unknown title defects.11 The insurance company agrees to pay the insured person—typically the current owner, new owner, or a third-party lender—if a defect that existed when the policy was issued causes financial loss. In return, the insurer charges an up-front lump-sum premium. Title insurance can be a wise investment for someone who acquires real estate through a quitclaim deed because the deed itself offers no warranty.
Quitclaim Deeds and Other West Virginia Deeds Used in Estate Planning
West Virginia law recognizes several other types of deeds characterized by their purposes rather than their warranty of title. Transfer-on-death deeds and life estate deeds are often useful in estate planning.
A West Virginia transfer-on-death deed—or TOD deed—transfers real estate on the date of the owner’s death.12 The owner, while still living, keeps all rights in the property—including the right to sell it.13 A West Virginia TOD deed cannot also be a quitclaim deed because TOD deeds by law cannot provide warranty of title.14
Life Estate Deed
A West Virginia life estate deed serves a purpose similar to a TOD deed. An owner can save a lifetime property interest (the life estate) and transfer to someone else the future right to the property when the owner dies (the remainder interest).15 The downside of life estate deeds is that the owner has to give up some rights in the property during life. A life estate deed can—but does not have to—be a quitclaim deed.
Common Uses of West Virginia Quitclaim Deed Forms
Property owners typically use quitclaim deeds to transfer property for no payment or change how real estate is titled without affecting its actual control. A sale that is made for valuable payment is less likely to involve a quitclaim deed—though quitclaim deeds can transfer purchased real estate.
Quitclaim deeds are common in the following settings:
- Giving real estate to a related party. An owner can record a quitclaim deed to transfer a gift of real estate to the owner’s child or other family member as part of the owner’s estate plan.16
- Joint tenancy. An owner can record a quitclaim deed to retitle co-owned property—such as to create a joint tenancy with right of survivorship between the current owner and another person.17
- Deed to trust. A quitclaim deed can transfer property from the owner to a revocable living trust created as part of an estate plan. A deed of this type is often titled deed to trust.
- Transferring real estate to a business entity. An owner can record a quitclaim deed to transfer title to a business entity controlled by the owner.18
- Carrying out a divorce settlement. An owner going through a divorce can use a quitclaim deed to transfer real estate to the other spouse as part of a divorce settlement.19
How to Create a West Virginia Quitclaim Deed
A West Virginia quitclaim deed must meet West Virginia’s standard requirements for deeds and include language showing that the deed is a quitclaim deed and not a different deed form.
Quitclaim deeds typically show the intent to transfer real estate with no warranty of title by including the title quitclaim deed and the right kind of granting clause. West Virginia’s quitclaim deed law suggests stating that the current owner “releases to the [new owner] all his claims upon the said lands.”20 Quitclaim deeds also usually say that the owner quitclaims the property to the new owner. Other transfer terms agreed by the parties may also be included in a quitclaim deed.21
To meet the West Virginia deed requirements, a deed must include the formatting, required content, and standards for signing described in the law.22 A deed that transfers real estate to more than one new owner should also say which co-ownership form the new owners will use.23
A West Virginia quitclaim deed form must follow West Virginia law. Every state has its own real estate system, and a quitclaim deed that works in another state may not work in West Virginia. An improperly prepared deed may be rejected by the county clerk or cause long-term problems with the property’s title.
- W.Va. Code § 36-1-1.
- W.Va. Code § 36-3-7.
- See W.Va. Code § 33-1-10(f)(4).
- W.Va. Code § 36-3-2.
- W.Va. Code § 36-3-7.
- 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., Tex. Prop. Code § 5.023 (a deed provides implied warranties “unless the conveyance expressly provides otherwise”).
- W.Va. Code § 36-4-2.
- W.Va. Code § 36-4-3.
- See W.Va. Code § 36-4-17.
- W.Va. Code § 33-1-10(f)(4).
- W.Va. Code § 36-12-5.
- W.Va. Code § 36-12-12(1).
- W.Va. Code § 36-12-13(d).
- W.Va. Code § 36-1-9.
- See W.Va. Code § 11-22-1(4) (exempting from transfer tax deed from parent to child for no consideration).
- See W.Va. Code § 36-1-20a.
- See W.Va. Code § 31D-3-302(4) (real estate ownership by corporation); W.Va. Code § 31B-1-112(b)(6) (real estate ownership by LLC).
- See W.Va. Code § 48-7-109 (exempting divorce-related transfers from transfer tax).
- W.Va. Code § 36-3-7.
- W.Va. Code § 36-3-4.
- See, e.g., W.Va. Code § 59-1-10; W.Va. Code § 39-1-11; W.Va. Code § 36-3-5; W.Va. Code § 39-1-2.
- W.Va. Code § 36-1-20(a).