When a Brooklyn homeowner decides to transfer their brownstone into a family trust, they often go online, download a generic legal form, sign it before a notary, and assume the job is done. Years later, when that homeowner passes away and the children attempt to sell the property, the buyer’s title company suddenly halts the transaction. The chain of warranties has been broken by a poorly chosen deed. Instead of a smooth generational transition of wealth, the family is left scrambling to clear title defects that could have been avoided entirely. The instrument you use to move real estate dictates the security of that asset for decades.
The Mechanics of Title Warranty
In New York real estate practice, we primarily rely on two types of instruments when transferring property: the bargain and sale deed and the quitclaim deed. While both legally move ownership from one party (the grantor) to another (the grantee), the level of protection they offer the new owner is drastically different. A deed is not merely a receipt of a transaction—it is a binding declaration of your rights and the historical integrity of the property.
The bargain and sale deed is the standard workhorse of property transfers in our state. When we move a primary residence or a commercial building into a revocable living trust, this is the instrument we almost universally rely on. A bargain and sale deed implies that the grantor actually owns the property and possesses the legal and unencumbered right to transfer it.
More importantly, we typically use a bargain and sale deed with covenants against grantor’s acts. This means the person transferring the property formally promises they have not done anything to compromise the title during their specific period of ownership. They are stating, on the public record, that they haven’t taken out a secret secondary mortgage, granted an unrecorded easement, or allowed a mechanic’s lien to be attached to the property. It provides a specific, necessary layer of fiduciary accountability that protects the receiving party.
The Danger of the Quitclaim Deed
By contrast, a quitclaim deed makes absolutely no promises. It simply states that whatever interest the grantor has—whether that is absolute fee simple ownership, a disputed fifty-percent share, or absolutely nothing at all—is being handed over to the grantee. You could legally sign a quitclaim deed transferring the Empire State Building to your neighbor—the deed would be valid in form, but entirely useless in function, because you have no legal interest to give.
Under New York Real Property Law § 258, the state provides the statutory forms for various conveyances, explicitly outlining the distinct language required for both bargain and sale deeds and quitclaim deeds. Just because a statutory form is legally permissible does not mean it is prudent for your family’s legacy.
Title insurance companies operating in our jurisdiction are notoriously wary of quitclaim deeds. Because there are no warranties of title, a quitclaim deed generally breaks the chain of title insurance coverage. If a distant relative suddenly emerges to claim an ownership stake stemming from a decades-old inheritance dispute, the title company may look at the intervening quitclaim deed and refuse to defend the current owner. The family is then exposed to significant, out-of-pocket legal fees in Surrogate’s Court or civil court to defend their rightful ownership.
Why Quitclaim Deeds Fail in Estate Planning
People often ask why quitclaim deeds exist if they offer such poor protection. They serve a narrow, deliberate purpose. We occasionally see them used to clear up minor boundary disputes between neighbors, or in divorce settlements where one spouse is court-ordered to disclaim any potential interest in the marital home so the other spouse can hold a clear title.
But for intentional estate planning, they are almost always the wrong tool. Much of our work involves funding trusts so that families can avoid probate. A trust is only an effective custodian of your wealth if your assets are properly titled in its name. When funding a trust with real property, the choice of deed dictates whether the title insurance policy you purchased when you originally bought the house continues to protect the property after it is transferred to the trustee.
Using a bargain and sale deed with covenants ensures that the property remains highly marketable. If you simply quitclaim a house to your children in a misguided attempt to avoid probate fees, you hand over an asset without the protective warranties that future buyers—and their mortgage lenders—will inevitably demand.
Correcting the Chain of Title
We frequently review estate plans drafted decades ago, or examine DIY efforts where property was quietly transferred between family members using a downloaded quitclaim form. If the chain of warranties has been severed, the property is functionally compromised. A missing covenant today becomes a major financial liability for your heirs tomorrow. Stewardship.
In cases like this, we typically consider executing a corrective bargain and sale deed if the original grantor is still alive and competent. If the grantor has already passed, we must often work alongside a title agency to secure a new policy before the property can be sold or borrowed against for elder care. Protecting a family’s real estate requires looking decades into the future to anticipate exactly what a title underwriter will require.
Property transfers are permanent. The consequences of using an inadequate deed often do not surface until the original owner has passed away and the family attempts a sale. If you recently transferred real estate to a family member, added a child to your deed, or funded a trust, and you are unsure which instrument was used, schedule a deed and title review with our office to verify that your property remains fully protected and marketable.
