Walter owned a beautiful piece of property in rural Ohio. His brother-in law, Hank often used the property for hunting. Walter decided to give the property to Hank. He signed a quit-claim deed naming Hank as the grantee and hand-delivered the deed to him. Hank gratefully took the deed and put it in the top drawer of his desk at home. Although Hank intended to record the deed at the county recorder’s office, it remained in the desk for several months. Sadly, Hank passed away in a work-related accident before he recorded the deed. 

When Walter reviewed the property records of the county recorder, he saw that he was still listed as the title owner of the property.  Walter listed the property for sale, hoping to sell to a land developer. Before Walter could find a buyer, Hank’s widow, Marie, found the deed in Hank’s drawer. She confronted Walter and argued that he cannot sell the property since he gave it to Hank. Walter said that Hank did not own the property because he failed to record the deed. Who is right?

In Ohio, there are several requirements to validly transfer ownership of real property. Deeds must be properly signed by the grantor and acknowledged by a notary. Then, deeds are recorded in the county recorder’s office where the real property is located. The act of recording puts the public on notice who owns the property. But Ohio law is clear that recording a deed is not required to pass title. Whether recorded or not, a deed in Ohio passes title upon its proper execution and delivery to the grantee.

The law states that actual delivery of the document is sufficient to transfer ownership between the parties. Acceptance of the deed by the grantee is part of the delivery process. Delivery and acceptance together show a mutual intention of the parties to pass title. If the grantee possesses the deed, then a presumption of delivery exists.  Ohio cases hold that title can pass between parties even though manual delivery is impossible. In those cases, delivery may be found from the acts of the parties before, during and after the execution of the deed.  

So, under our facts, when Hank accepted the deed from Walter, the real property effectively transferred to Hank. Walter no longer has an interest in the real property. But what if Walter refuses to recognize Hank’s ownership?

Ohio law has a remedial device used to prevent fraud and unjust enrichment in these cases. It is called a constructive trust. Through a constructive trust, a court uses principles of equity to make things right. If a holder of title may not in good conscience retain his interest, then the law considers him as a trustee for the rightful owner.  A court has broad discretion to order conveyance of real property to another in the interest of fairness.

If you find yourself in a dispute regarding the transfer of real property in Ohio, it is important to consult a trusted real property attorney. The attorneys at Laribee & Hertrick can assist you to make sure that fairness and equity prevails.

This article is intended to provide general information about the law. It is not intended to give legal advice. Readers are urged to seek advice from an attorney regarding their specific issues and rights.

Michael Laribee is a partner in the Medina law firm of Laribee Law, LLP. This article is intended to provide general information about the law. It is not intended to give legal advice. Readers are urged to seek advice from an attorney regarding their specific issues and rights.