I often meet with families where a parent is considering adding an adult child to the deed of their home. The goal is usually straightforward: they want the property to pass directly to their child and avoid the time and expense of Surrogate’s Court. On the surface, it seems like a simple signature on a piece of paper. But the type of deed used for that transfer determines the promises being made—and the risks being taken—by both parent and child. A simple document can unintentionally create significant future liability.
The Quitclaim Deed: A Transfer Based on Trust
The simplest form of transfer is the quitclaim deed. When someone gives you a quitclaim deed, they are not making any promises about the property’s title. They are essentially saying, “Whatever interest I may have in this property, I am now giving it to you.”
There is no guarantee that they own the property at all, or that the title is free from liens, mortgages, or other claims. Because it offers zero protection to the recipient, the quitclaim deed is almost never used in a standard arm’s-length sale. Instead, we typically see it used in situations built on existing trust:
- Family transfers, such as a parent gifting a home to a child.
- Divorce settlements, where one spouse transfers their interest in the marital home to the other.
- Estate planning, specifically when moving a property you already own into a revocable living trust you control.
The risk is clear. If an old, forgotten lien from a previous owner surfaces years later, the new owner has no legal recourse against the person who gave them the quitclaim deed. It is an instrument of convenience, not of protection.
The Bargain and Sale Deed: The New York Standard
In most real estate transactions across New York, particularly for residential sales, the go-to instrument is the Bargain and Sale Deed. This deed represents a significant step up from a quitclaim.
With a Bargain and Sale Deed, the seller (the “grantor”) implies that they hold title to the property. However, the basic form of this deed doesn’t guarantee against any encumbrances. To provide a layer of protection, it is almost always executed “with covenant against grantor’s acts.” This covenant is a specific, limited promise: the seller personally guarantees that they have done nothing to cloud or damage the title during their period of ownership. They are not making any promises about what happened before they bought the property.
This is the workhorse of New York real estate. Why? Because the modern system of title insurance has largely taken on the job of investigating the property’s entire history and insuring the buyer against past title defects. The seller promises their own conduct was clean, and the title insurance policy covers the rest. In fact, the language for this and other deeds is so standardized that it’s laid out in New York Real Property Law (RPL) § 258, which provides the statutory short forms.
The Warranty Deed: The Strongest Promise of All
The Warranty Deed offers the highest level of protection to the buyer (the “grantee”) and is therefore the riskiest for the seller. It contains the same covenant against the grantor’s acts as a Bargain and Sale Deed, but it includes several other powerful guarantees that extend back through the entire chain of title, not just the seller’s period of ownership.
These guarantees—or “covenants”—include:
- Covenant of seisin: A promise that the seller owns the property and has the right to sell it.
- Covenant of quiet enjoyment: A promise that the buyer’s ownership will not be disturbed by a third party with a superior claim.
- Covenant against encumbrances: A promise that the property is free of liens or other claims, except those specifically stated in the deed.
- Covenant of warranty: A promise that the seller will defend the buyer’s title against any claims from anyone, forever.
This is an absolute promise. If a title issue from 50 years ago arises, the seller who gave a Warranty Deed is legally obligated to step in and fix it. While this provides the strongest protection available, the prevalence of title insurance has made the full Warranty Deed less common in many parts of the state. The insurance policy, not the seller’s personal guarantee, has become the primary backstop for a buyer.
Stewardship Begins with Clarity
The deed to your home is a foundational document in your family’s legacy. Its terms dictate rights and responsibilities that can last for generations. Understanding which type of deed is appropriate for a given transfer—whether as part of a sale or as a component of an estate plan—is not a detail to be overlooked. It requires a deliberate and prudent approach.
Before you consider transferring property to a loved one or placing it into a trust, the first step is to be certain about what you own and how you own it. My firm can begin by reviewing the current deed for your primary residence to assess how its legal structure aligns with your long-term stewardship goals.
