Delivery means giving up control of the deed.

 Ownership of your home is transferred by a written deed. It is very common to jointly title a home in the name of a husband and wife to keep the house out of probate.  It is easy to write a deed that says "Joe gives this land to Joe and Jenny, as husband and wife," so that the married partners jointly own the home. And when one or the other dies, the survivor gets full ownership of the home, outside of the formal probate process.  In this situation, ownership passes from one spouse to the surviving spouse at the moment of death, with nothing more required--it is automatic. 

     But simply writing and signing the deed is not enough. There is an important step in the process, dating back hundreds of years, that is often forgotten. The Maryland Court of Special Appeals just reaffirmed the historical concept that a deed must be "delivered" in order to effectively transfer title to real property. Without this final step, absolutely no transfer of ownership is accomplished.

     In Daniels v. Daniels, the intermediate appellate court relied on this ancient concept to pull  title to a home away from a surviving wife so that it would be included in the estate of her dead husband. It held that the ownership interest was not "delivered" because the deed remained for six years in a filing cabinet in the couples home. Because the husband who wrote the deed to transfer an interest to his wife had access to the deed, and because he could have destroyed the deed at any time, the court ruled that the deed had not been delivered. The wife knew about the deed, and both understood that the document made them joint owners, but the trial court and appellate courts  both concluded that this simply was not enough.  A fully executed deed that is accepted by the other party is just not enough to transfer ownership unless it is "delivered." And that means giving up any right to get the deed back, or to destroy the deed.

            The method for delivery of ownership has changed a bit since the days of old. Hundreds of years ago, ownership of land was officially delivered through a ceremony often called the “Liveryof Seisin.” In this ceremony the person giving the land would present he person receiving the land with a clump of earth from the property being transferred.

           As is described in this court decision, delivery is now complete when the person who is giving the land no longer has any control over the deed. He must not only surrender physical possession of the actual land, but he must have no right to recall the deed giving legal title to the land-- the deal must be final. While this seems simple, it has gotten people into trouble just like Mr. Daniels.
     Mr. Daniels clearly intended that his wife of over forty years would inherit full ownership of their home. And the trial court even acknowledged this fact. But because he did not take the advice of others to record the deed and because he chose to keep it in a filing cabinet with the couple's important papers, his wife was denied full ownership. Instead, Mr. Daniels daughter was able to use the lack of formal delivery to defeat his intent and force the home into probate, where the daughter would inherit partial ownership.
     Unfortunately, property ownership and inheritance is too often the ultimate family battle ground. We can only guess at the daughter's motivation for wresting the house away from mom.

      So how can you make sure that you have properly delivered a deed? The best method of delivery is to record a deed in the Land Records. Once a deed has been recorded in the county land records, it becomes a matter of public record and it can’t be taken back. Mr. Daniels might have saved his wife lots of trouble, and he might have prevented a big family squabble if he had taken the advice of his professionals to simply record the deed.