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Unrecorded Deed Immediately Transferred Ownership

Lesson.  An unrecorded quitclaim deed executed and delivered during owner’s lifetime terminated a beneficiary’s interest under a “transfer on death” deed that had been executed previously.  An Indiana deed generally will effect a transfer regardless of whether it is recorded.

Case cite.  Robinson v. Robinson, 125 N.E.3d 1 (Ind. Ct. App. 2019).

Legal issue.  Whether subsequent, unrecorded quitclaim deed revoked a beneficial interest in real estate that previously had been created by a recorded transfer on death (TOD) deed.

Vital facts.  On October 24, 2014, Mom executed a TOD deed in which the fee simple title in her house would transfer, upon her death, to her kids Rea and Radley as tenants in common.  Mom recorded that deed on November 12, 2014.  Two years later, Mom executed and delivered a quitclaim deed of the house to Rea only, effective immediately.  However, this subsequent deed was not recorded until after Mom died.

Procedural history.  Radley filed a lawsuit seeking to enforce the TOD deed.  The trial court entered summary judgment in Radley’s favor and concluded that Radley and Rea owned the house as tenants in common.  Rea appealed.

Key rules.  Indiana has a statute called the Transfer on Death Property Act (ACT) at 32-17-14.  The Indiana Court of Appeals sliced and diced the Act in terms of its application to the Robinson dispute. 

The TOD deed was valid.  However, Section 19(a) of the Act provides, among other things, that a beneficiary of a TOD deed takes the owner’s interest in the property at the time of the owner’s death and subject to all conveyances made by the owner during the owner’s lifetime.

Indiana Code 32-21-1-15 controls quitclaim deeds.

In Indiana, generally “a party to a deed is bound by the instrument whether or not it is recorded.”

Holding.  The Indiana Court of Appeals reversed the trial court’s summary judgment for Radley and entered summary judgment for Rea.  “As a matter of law, Radley’s contingent interest in the real estate was extinguished before [Mom’s] death.” 

Policy/rationale.  If you have probate and estate issues under the Act, the Robinson opinion has a nice explanation of why the TOD deed did not hold up.  For purposes of mortgage servicing and title issues, the key takeaway is that, as to Radley (one of potential co-owners under the TOD deed), the quitclaim deed to Rea cut off Radley’s beneficial interest - even though the deed was never recorded.  The deed complied with Ind. Code 32-21-1-15.  Title passed.  The fact that the deed had not been recorded was immaterial to Radley’s claim to ownership.

Related posts. 

*Don’t Forget To Record The Deed

*Sampling Of Indiana Deed Law, And Judgment Lien Attachment Issues

*In Indiana, An Unrecorded Mortgage Has Priority Over A Subsequent Judgment Lien

I represent lenders, loan servicers, borrowers, and guarantors in foreclosure and real estate-related disputes. If you need assistance with a similar matter, please call me at 317-639-6151 or email me at [email protected]. Also, don’t forget that you can follow me on Twitter @JohnDWaller or on LinkedIn, or you can subscribe to posts via RSS or email as noted on my home page.  

Deeds In Lieu Of Foreclosure: Who, What, When, Where, Why and How

In the event a loan becomes non-performing, commercial lending institutions that hold mortgages in Indiana need to be familiar with deeds in lieu of foreclosure.  They are a form of settlement.

Who.  The parties to a deed in lieu are the mortgagor (generally, the borrower) and the mortgagee (usually, the lender).  Both sides must consent.  Most lawyers will say that it isn't advisable to accept a deed in lieu if there are multiple lien holders.  Lenders will have to negotiate releases of those liens in order to secure clear title.  The better approach may be to proceed with foreclosure, which will wipe out such liens.   

What.  A deed in lieu of foreclosure is a document that conveys title to real estate.  What is unique about this particular deed is that the mortgagor surrenders its interests in the real estate to the mortgagee in consideration for a complete release from liabilities under the loan documents.  The release, among other things, usually is articulated in a separate settlement agreement.  But, a release is not automatic.  

When.  Lenders normally pursue deeds in lieu when there is no chance of collecting a deficiency judgment - the mortgagor is judgment proof.  For example, this option makes sense with non-recourse loans.  Another consideration is when the value of the property unquestionably exceeds the amount of the debt.  If the lender thinks it may be able to liquidate the real estate for more than the borrower owes, pursuing a money judgment may be superfluous.

The parties typically will explore a deed in lieu of foreclosure early on in the dispute - once a determination is made by the lender to foreclose.  Although this is the point in which deeds in lieu are best utilized, in Indiana it's possible to execute the deed right up until the time the property is sold at a sheriff's sale.

Where.  Deeds in lieu are the product of out-of-court settlements.  The process of the securing of a deed in lieu is non-judicial. 

Why.  The fundamental reasons why a lender may want to take a deed in lieu of foreclosure involve time and money.  A deed in lieu grants to the lender immediate possession of the real estate.  Several months, conceivably years, can be saved.  Just as importantly, spending thousands of dollars, primarily in attorney's fees, could be avoided by cutting to the chase with a deed in lieu.  Expediency and expense are the primary factors that motivate lenders to accept a deed in lieu of foreclosure. 

How.  Other than the obvious - executing a deed - there are certain steps a lender should consider taking before it enters into a deed in lieu.  The lender should know whether it is acquiring clear title.  A title insurance policy commitment should be ordered to examine the status of any liens, taxes and other potential clouds on title.  Work also may need to be done to get a handle on the value of the property.  This may include an appraisal, an inspection or an environmental assessment.  These things generally are recommended when evaluating how to proceed with any distressed loan.

    Anti-merger clause:  One potential land mine must be specifically highlighted here.  Without getting too technical, in Indiana there needs to be language in the deed protecting against a merger of the mortgagor's fee simple title and the mortgagee's lien interest, which merger could extinguish the mortgagee's rights under the mortgage.  Without the appropriate language expressing the intent of the parties in the deed, the lender's interest in the property could become subject to junior liens without the right to foreclose.  So, be sure that you or your lawyer inserts an anti-merger clause into the deed.


My practice includes the representation of parties in disputes arising out of loans. If you need assistance with a similar matter, please call me at 317-639-6151 or email me at [email protected]. Also, don’t forget that you can follow me on Twitter @JohnDWaller or on LinkedIn, or you can subscribe to posts via RSS or email as noted on my home page.