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So, you want to create a deed but you’re not sure what legal description to use? (Be sure to follow the statute of frauds requirements in your state.)
The statute of fraud and deed rules work in concert. Typically, these laws mandate that certain deeds, leases, agreements, and other property transfers, be written and contain specific components. Statute of frauds issues most common touch upon real property transfers. In virtually every jurisdiction in the United States, the law requires that for a transfer of real property to be valid, it must be done in writing and contain the signatures of the granting/transferring parties. The third requirement is often overlooked: the document must contain the proper legal description of the subject property.
Nationwide, the rules vary on how strict the requirement is for the legal description. For instance, in the State of Washington, a deed must contain the FULL legal description. It is not sufficient to contain a street addres, tax identification number, or even an abbreviated legal description. It must contain the entire legal description to be valid. In fact, an agreement containing an inadequate legal description of the land conveyed is void under the statute of frauds. RCW 64.04.020, [subscribers can access an enhanced version of this statute: lexis.com | Lexis Advance]. Maier v. Giske, 223 P.3d 1265 (Wash. Ct. App. Div. 1 2010), [subscribers can access an enhanced version of this opinion: lexis.com | Lexis Advance]. It is important to recognize that this is generally considered to be the most strident legal description standard in the country. The majority of other jurisdictions require that the property be described with “reasonable certainty.” This standard also allows for legal descriptions to be incorporated by reference (i.e. by referring to a separate, recorded document, which contains a sufficient legal description.)
Outside of Washington, the statute of frauds property description requirements are more forgiving. In general, a property that is described with “reasonable certainty” such that it “may be identified by a competent surveyor” will satisfy the statute of frauds. McKevitt v. Sacramento, 55 Cal App 117, 203 P 132 (1921), [subscribers can access an enhanced version of this opinion: lexis.com | Lexis Advance]. This is true even if the parties must resort to extrinsic evidence. “When [identifying the property with reasonably certainty] is possible, either with or without the aid of extrinsic evidence, the description is sufficient. Id.
For more on the issues of the sufficiency of legal descriptions, see Vinson v. Brown, 80 S.W.3d 221 (Tex. App. Austin 2002), [subscribers can access an enhanced version of this opinion: lexis.com | Lexis Advance], Douglas v. Vorpahl, 167 Wis 244, 166 NW 833 (1918), [subscribers can access an enhanced version of this opinion: lexis.com | Lexis Advance],and R. H. Lindsay Co. v. Greager, 204 F.2d 129 (10th Cir. 1953), [subscribers can access an enhanced version of this opinion: lexis.com | Lexis Advance]. Thus, when executing real estate documents, it would be wise to include the most detailed or “full” legal description available. Given that many real estate documents are digitized and made available on the internet, your local county recorder’s office would be the first place to look.
(Note: express easements are treated differently than regular deed grants when it comes to specific descriptions. Most jurisdictions require the legal description of the servient estate (property burdened by the easement) to contain the legal description, while the description of the easement itself can be more general.)
Robert Dickson is a practicing attorney and adjunct professor at the Seattle University School of Law, where he teaches real estate litigation. He serves as the co-editor and contributing author for the LexisNexis Practice Guide: Washington Real Estate Litigation. Mr. Dickson is also an author for the Washington Lawyers Practice Manual, where he contributes to the Real Property Practice, and Land Use and Environmental Law chapters. For more information about real estate law issues, please visit the Washington Real Estate Law Blog or his firm’s real estate law page.