When is a Writing or Defective Deed "Good Enough" to Convey Real Estate in Texas?

San Antonio Texas Real Estate Attorney Trey Wilson wrote:

Many times, real estate lawyers (in San Antonio, TX and elsewhere) are called upon to opine on the validity and effectiveness of less-than perfect writings intended to grant/transfer/convey interests in land. These documents come in all shapes and forms -- from template documents missing essential details, to scribbled writings on the back of beer coasters.  Irrespective of the form of such a writing, the analysis of whether they are "good enough" to convey ownership falls upon their substance, as judged by  somewhat mundane criteria prescribed by two Texas statutes.

To validly convey an interest in land, a document (including a contract for the sale of real estate, a Contract for Deed, a deed, and/or any other writing) must satisfy the requirements of both the "statute of conveyances" (located at Texas Property Code section 5.021), and the "statute of frauds" (located at Texas Business and Commerce Code section 26.001). 

To be enforceable and comply with the statute of frauds, a document purporting to transfer/grant/convey an interest in real property must be in writing and signed by the person to be charged with the agreement. TEX. BUS. & COM.CODE ANN. § 26.01(a), (b)(4) (Vernon 2009); Cate v. Woods, 299 S.W.3d 149, 152 (Tex.App.-Texarkana 2009, no pet.). 

To convey an interest in land under the statute of conveyances, the instrument of conveyance must be in writing, must be signed, and must be delivered by the party disposing of his interest. TEX. PROP.CODE ANN. § 5.021 (Vernon 2004); Thompson v. Clayton, 346 S.W.3d 650, 656 (Tex.App.-El Paso 2009, no pet.); McDaniel v. Carruth, 637 S.W.2d 498, 505 (Tex.App.-Corpus Christi 1982, no pet.).

In essence, the instrument conveying the land must contain the essential characteristics of a deed. See TEX. PROP.CODE ANN. § 5.021; see Green v. Canon,33 S.W.3d 855, 858 (Tex. App.-Houston [14th Dist.] 2000, pet. denied). There is, however, no longer a requirement that a deed or instrument to effect the conveyance of real property must have all the formal parts of a deed recognized at common law or technical language. Green, 33 S.W.3d at 858; see also Marrs & Smith, P'ship, v. D.K. Boyd Oil & Gas Co., No. 08-00-00386-CV, 2002 WL 1445334, at *5 (Tex.App.-El Paso July 3, 2002, no pet.) (not designated for publication). 

Rather, if (1) from the instrument as a whole a grantor and grantee can be ascertained and (2) there are operative words or words of grant showing an intention by the grantor to convey to the grantee title to a real property interest, (3) which is sufficiently described, and (4) the instrument is signed and acknowledged by the grantor, then the instrument of conveyance is a deed that accomplishes a legally effective conveyance. Green, 33 S.W.3d at 858; Marrs & Smith, 2002 WL 1445334, at *5.

Language in an instrument that contemplates future action is not language that contemplates a completed transaction in land. See Green, 33 S.W.3d at 859 (holding attempted gift of land invalid where contemplated future action evidenced "an intent to make a gift in the future rather than a completed gift"); see also Marrs & Smith,2002 WL 1445334, at *6 (finding that agreement purportedly conveying interest in land did not evidence present intent on part of alleged grantor to convey interest in land where agreement contemplated obligation to convey interest upon occurrence of specific future event).