What to Do When a Quitclaim Deed Is Challenged

What to Do When a Quitclaim Deed Is Challenged

by Brette Sember, J.D., September 2018

A quitclaim deed is a legal instrument that transfers the grantor's legal interest in a piece of real property to another person (the grantee). And it is possible for a quitclaim deed to be challenged.

Woman in button up shirt holds pen and looking at stack of paper across from man leaning forward

If a quitclaim deed is challenged in court, the issue is whether the property was legally transferred and if the grantor had the legal right to transfer the property.

Quitclaim Deed vs. Warranty Deed

A warranty deed is a legal document used to transfer real property. When a home is sold, a warranty deed is the document generally used to transfer the property. A warranty deed contains a guarantee from the seller to the buyer that the seller owns the property outright, free of encumbrances, and has the right to transfer full and clear title to the buyer. Should there be any problem with the title (for example, a mortgage on the property that was not paid off prior to the sale), the buyer must be reimbursed by the seller for this amount.

A quitclaim deed, in comparison, makes no promises about the grantor's having clear title. A quitclaim deed transfer only transfers the ownership rights the grantor has—with no guarantees.

When to Use a Quitclaim Deed

A quitclaim deed is not generally used in a traditional sale of real estate. It is most commonly used when ownership rights in a property are transferred among family members. In a divorce, a quitclaim deed is a way to transfer ownership in property between divorcing spouses. For example, the spouses owned the marital home together. As part of the property settlement, Spouse A will take ownership of the home. Spouse B executes a quitclaim deed to transfer all of their interest in the property to Spouse A.

It's also common to use a quitclaim deed to add a spouse to a property after marriage. For example, Spouse A owned the home before marriage. After marriage, they add Spouse B as an owner by using a quitclaim deed, transferring ownership from themselves to themselves and their spouse. A quitclaim deed is not needed if there is a mortgage. The mortgage can remain in Spouse A's name.

A quitclaim deed to avoid probate is sometimes used to transfer an interest in real property before someone's death in an attempt to avoid probate court. The property is transferred by deed during their life, instead of being transferred by a will after the grantor's death.

Challenges to a Quitclaim Deed

There can be various avenues to challenge a quitclaim deed. A challenger could claim that the grantor didn't actually sign the deed or that it was forged.

Once a quitclaim deed has been recorded in the county clerk's office, it becomes more difficult to challenge, since the transfer has already occurred. The person challenging the deed has the burden of proving it was falsified or not legally executed.

If you are facing a quitclaim deed challenge, you should talk to an attorney. Gather any proof you have about the execution of the deed including:

  • People who saw it being executed who can testify
  • Proof of the grantor's intent, such as letters or emails
  • A copy of the recorded deed from the county
  • The deed that originally transferred ownership to the grantor to prove they had full title to transfer

Work with your attorney to dispute the case in court if you are faced with a challenge.

To help ensure that you don't end up being subject to a challenge, you may want to work with an online services provider so that any residential leases or property deeds are prepared correctly.