Transferring Real Property
Real property can be transferred in many different ways, both voluntarily and involuntarily. There are three ways you can voluntarily transfer or grant an interest in real property while you are living: by sale, gift or dedication. In a sale, you transfer your property in exchange for something else of value, called “consideration.” When you transfer your property without getting anything of value in return, it is transferred as a gift (unless it is as a transfer of nominal ownership only; that is, a change in name only). When you transfer your real property, or a portion of it, to the government, it is called a dedication.
There are several ways your real property can be involuntarily transferred from you, that is, without your consent and agreement. These include condemnation or eminent domain, foreclosure, adverse possession, or partition. Federal, state, and local governments have the power of “eminent domain” which means that your property can be taken, in exchange for just compensation, to be used for the public benefit. The legal process used is called a lawsuit for “condemnation.” You must receive notice and an opportunity to challenge both the taking and the amount of compensation given to you for your real property.
Your real property can also be taken involuntarily from you in order to pay off debts you agreed to pay. This process is called “foreclosure” and your real property is sold to pay off your debts. The types of debt that can be paid off with foreclosure include mortgage liens, judgment liens, mechanics liens and tax liens. Property to be foreclosed upon must be subject to a mortgage or a lien of some kind, such as a judgment or tax lien.
Another involuntarily method of transferring your real property is called “adverse possession.” This happens when you do not occupy or visit your land and have not clearly marked its boundaries. Another person or persons claim ownership of the land, and use it exclusively, and openly, for a period of ten years. After that time, the other person can bring a “quiet title” action and gain title to your real property. This is typically applied to a partial interest in property, such as a right of way.
A “partition” action is another way your real property may be transferred involuntarily. Partition happens when you own property together with another person or persons, and you cannot agree on what to do with the property or how to use it. The other owners can file a partition action to ask the court to either divide the property physically or forcibly sell it to divide the proceeds from the sale.
There are three ways your real property can transfer after your death: by will, by descent (an estate without a will) or by escheat (a very rare situation where the property owner has no will and no heirs).
Legal Editors: Terrence Dunn and Ira H. Goldfarb, July 2017
Changes may occur in this area of law. The information provided is brought to you as a public service with the help and assistance of volunteer legal editors, and is intended to help you better understand the law in general. It is not intended to be legal advice regarding your particular problem or to substitute for the advice of a lawyer.