WHEN is a Texas Deed Effective? Date of Recording is Not Controlling.

San Antonio Texas Real Estate Attorney Trey Wilson wrote:

Many legal disputes related to Texas real estate require determination of WHEN a conveyance of an interest in real property occurred. In fact, many lawsuits have been fought for the sole purpose of determining when title is conveyed and a conveyance takes effect;  and, resolution of that issue can have tremendous implications.

Under Texas law, a conveyance of an interest in real property must meet the following 3 criteria:

1) be in writing, 

2) be signed by the grantor, and 

3) be delivered to the grantee  

See Tex. Prop.Code § 5.021  

Significant by its absence from those criteria is a requirement that a conveyance instrument (typically a deed) be recorded with the County Clerk or any other governmental agency.  This is because in Texas a deed does not have to be recorded to convey title. Thornton v. Rains, 157 Tex. 65, 299 S.W.2d 287, 288 (1957); Burris v. McDougald, 832 S.W.2d 707, 709 (Tex.App.-Corpus Christi 1992, no writ). Stated simply, the act of filing or recording a deed is not the act which operates to convey title to real property. Adams v. First Nat'l Bank of Bells/Savoy, 154 S.W.3d 859, 869 (Tex. App. Dallas—2005, no pet.). Rather, a conveyance is effective and title is conveyed when an executed deed has been delivered to the grantee. Id.; see also, Stephens County Museum, Inc. v. Swenson, 517 S.W.2d 257, 261 (Tex.1974);Hicks v. Loveless, 714 S.W.2d 30, 32 (Tex.App.-Dallas 1986, writ ref'd n.r.e.); Rothrock v. Rothrock, 104 S.W.3d 135, 138 (Tex.App.-Waco 2003, pet. denied).

What constitutes a "delivery" of a deed is a question of law for a Court to determine. Ragland v. Kelner, 148 Tex. 132, 221 S.W.2d 357, 359 (1949); see also Rothrock, 104 S.W.3d at 138. Whether there has been a delivery of a deed is a fact question, which should be resolved by a jury. Ragland, 148 Tex. 132, 221 S.W.2d at 359; see also Rothrock, 104 S.W.3d at 138.

Although the factors and analysis of whether a deliry has occurred, generally speaking, two

elements must be established to prove delivery of a deed: (1) the deed must be delivered into the control of the grantee, and (2) the grantor must intend the deed to become operative as a conveyance. Binford v. Snyder, 144 Tex. 134, 143-44, 189 S.W.2d 471, 475 (1945); Hicks, 714 S.W.2d at 32; see also Bellaire Kirkpatrick Joint Venture v. Loots, 826 S.W.2d 205, 213 (Tex.App.-Fort Worth 1992, writ denied);Raymond v. Aquarius Condominium Owners Ass'n, Inc., 662 S.W.2d 82, 91 (Tex.App.-Corpus Christi 1983, no writ); Bennett v. Mings, 535 S.W.2d 408, 409 (Tex.Civ.App.-Texarkana 1976, writ ref'd n.r.e.).

In the end, the question of whether a deed has been delivered is primarily one of the grantor's intent. Raymond, 662 S.W.2d at 91; Bennett, 535 S.W.2d at 409. The intent of the grantor is determined by examining all the facts and circumstances preceding, attending, and following the execution of the deed. Stephens, 517 S.W.2d at 262; Rothrock, 104 S.W.3d at 138; see Thornton,299 S.W.2d at 288. 

Litigating the effective date of a conveyance, and trying to prove that a deed's effective date pre-dates the date of recording are complex legal issues. The facts and circumstances surrounding every deed are different, but at the end of the day, an experienced real estate litigation attorney can help you navigate the legal minefield associated with establishing the Effective Date of a deed in Texas.