Drafting the Deed

Earlier, we noted that deeds have minimal requirements in order to be “legal,” pursuant to statute. While this is true, Indiana courts have held that:

An instrument, having otherwise the formalities of a deed, will be construed to operate as a deed whenever it appears therefrom that it was the intent of the maker to convey any estate or interest whatever, to vest upon the execution of the paper.[1]

In the interest of refusing to test these limits, most deeds have certain clauses that describe important things about the parcel to be transferred, such as the grantor, the premises to be conveyed, the size of the estate being conveyed (fee simple, life estate, and so on), any reservations, etc. These clauses have Latin names which you eventually may learn for your employment, but for the time being, we will use common terms. Some key clauses that most Indiana deeds contain include:

1. Key Number – This may also be a “parcel number” – it is essentially a unique identifier for any given piece of property in a county. A key number “means a number assigned to a tract of land in a county by a county auditor that:(1) identifies the taxing district in which the tract is located;(2) is a number that is not assigned to any other tract in the county; and (3) is listed in the transfer book or records maintained under IC 6-1.1-5.^[2]
2. Name of the Grantor – This is the name of the current owner or agent of the owners of the property, usually with the name of their county of residence, and matches the signature on the deed. For instance, in a warranty deed or quitclaim deed, this is usually the current owner. In a sheriff’s deed, the grantor is technically the Court, and it would likely be signed by a sheriff pursuant to court order. In a trustee or personal representative’s deed, the grantor is the trust or estate in question, and would be signed by the trustee or personal representative, respectively.
3. Name of the Grantee – This is the name of the individual or business taking ownership of the property, along with their county of residence.
4. Way in Which Title is Taken – Here, you will see statement concerning how the grantee will take title, such as “fee simple,” “tenants in common”, and so forth. Remember, if it is warranty deed to one person, it is most likely, “fee simple.” However, if to more than one person, it will be as tenants in common, joint tenancy, or tenancy by the entireties.
5. Consideration – This is the amount for which the property was transferred. This is not required to be the real amount – often a deed will state something like “$10.00 and other good and valuable consideration. This is because deeds are public record, and many people do not wish to disclose to the public the amount paid or received for property.
6. The Legal Description – This is an extremely important part of the deed. The legal description provides the precise location and delineation of the parcel of property in question. While the Key Number provides a unique identifier for the county records, the legal description describes where the land is located, the boundaries of the land, and size of the land (directly or indirectly). We will discuss legal descriptions at greater length in the chapter on legal descriptions.
7. The Common Name – This is usually the street address of the property. While this is sometimes omitted, especially on older deeds when there may have been no street address, it can be extremely useful in the day and age of electronic maps to find the property in question to get a satellite or aerial photograph view. Therefore, if you can include this when drafting a deed, and there is no reason not to do so, it should be included.
8. Limitations or Exceptions Clause – This clause sets forth any rights, easements, licenses, or any other limitations on ownership. For instance, one will often see “subject to any and all easements, agreements and restrictions of record.” We will get more into this when we discuss the recording process, but one example of a “easement…of record” would be a right by a utility company to use part of the land to run a utility line (such as power) and the additional right to use the property to access that utility.
9. Tax Bills – Most deeds have either have an address where tax bills should be sent or a reference that the address should be the common address listed on the deed. This is particularly important where the billing address for taxes is different than the address on the deed, such as when the property is commercial (rental, warehouse, etc.) and the tax payor is located at another address.
10. Signature – As we noted previously, a deed must be signed by the grantor(s) in order to be valid. It usually contains a reference to the fact that the deed is signed in front of a notary. It also usually contains the date the deed was signed, if not set forth independently.
11. Notary Acknowledgement –To be recorded, a deed must be witnessed by a notary. Indiana statutes set forth requirements to become a notary, establish a bond to be given by a notary, and so forth.
12. Drafter – To be recorded in Indiana, the deed must contain the name of the individual or business who drafted the deed.
13. Return Address – this is the location where the deed, after it has been recorded and stamped, should be mailed. It usually matches the tax bill location, though not always.
14. Tax Bill Address – if not set forth previously.

In addition to these requirements, Indiana sets forth certain statutory requirements which must be in place on any deed before it may be recorded. These additional statutory requirements are found in Ind. Code § 36-2-11-16(c). However, a deed that does not completely meet these requirements may still nonetheless be recorded if a number of additional requirements, as set forth in Ind. Code § 36-2-11-16(d), are met.

Still more, Indiana also imposes requirements for documents presented to be recorded (with certain exceptions) which are:

1. The instrument or document consists of at least one (1) individual page measuring not more than eight and one-half (8 ½ ) inches by fourteen (14) inches that is not permanently bound and is not a continuous form;
2. The instrument or document is on white paper of at least twenty (20) pound weight and has clean margins: (A) on the first and last pages of at least two (2) inches on the top and bottom and one-half (½) inch on each side; and (B) on each additional page of at least one-half (½) inch on the top, bottom, and each side; and
3. The instrument or document is typewritten or computer generated in black ink in at least 10 point type.^[3]

Moreover, in any Indiana document submitted for recording, any social security number must be removed unless otherwise required by law (Ind. Code § 36-2-7.5-4), and must contain a sworn statement that all social security numbers have been removed, in approximately this form:

I affirm, under the penalties for perjury, that I have taken reasonable care to redact each Social Security number in this document, unless required by law (name).^[4]

and must contain a statement indicating who prepared it in approximately this form:

This instrument was prepared by (name).”^[5]

Lastly, there may be additional requirements we will discuss in other parts of this text, such as the filing of a sales disclosure form with the County Assessor. While this seems like a great deal of information, most of it will be contained in forms maintained by law firms and title companies. It is good for you to know the generalities, as set forth above, in the event you are ever asked.

[1] Spencer v. Robbins, 106 Ind. 580, 5 N.E. 726, 729 (1886)

[2] Ind. Code § 6-1.1-1-8.5

[3] Ind. Code § 36-2-11-16.5(b)

[4] Ind. Code § 36-2-11-15(d)

[5] Ind. Code § 36-2-11-15(c)