Title and deed are often used interchangeably, but they are not the same. To start with, title is a concept, it is not a physical thing. Title is the idea of ownership, the idea of being entitled to something. Many cultures used to transfer title/ownership with spoken words only, or with a handshake. Title was simply a general agreement among people that you were entitled to land or other objects. This has not changed; title still is, in essence, a general agreement among people that a particular thing is owned by a particular individual or group.
What has changed about title over centuries is how it is referenced. Most jurisdictions require title to be referenced in writing. This is where the deed comes in.
In the United States, title must be transferred using written documents, or deeds. A deed is a legal instrument that transfers title. Deeds are carefully tracked and are usually recorded to be sure that they are unique. This uniqueness is essential to a deed; a deed cannot give the same ownership rights in a property to multiple competing people at the same time.
This seems fairly straightforward. However, title as a concept in the United States actually refers to a number of types of ownership. For example, the right to possess, build on, and inhabit a piece of property might be owned by one person, but the mineral rights to any oil, coal, or other valuable minerals from that same piece of property might be owned by another person or entity. In a big city like New York, the air rights to build over a property might be owned by yet another person.
Thus, title to a property involves many types of ownership. These types of ownership are referred to as title rights.
Most properties started out as a collection of title rights that were owned by one person. That is, the owner owned the title right to inhabit the property, as well as the title right to extract oil and minerals from it, and even owned the right to all of the airspace above it. After hundreds of years, multiple people or entities may now own separate title rights to the same piece of property.
As mentioned earlier, the way these title rights are transferred is generally through deeds. Thus, the same property might have one valid deed conveying the mineral rights to one party and another valid deed conveying the right to inhabit and build on the land to another party. Deeds are not title; they are how title is transferred.
To make things more complicated, someone may have most title rights in a property, but not have the deed to the property conveying these rights. This is what happens with a deed of trust. With a deed of trust, a borrower pays a lender over time for the right to own the property, much like a mortgage. However, the actual deed transferring title is in the possession of a trustee, who has the right to transfer the title (sell the property) only if the borrower defaults on their loan. The borrower has equitable title, which in this case means that the borrower may enjoy most of the title rights to the property (may inhabit it, build on it, etc.). However, the legal title rests with the trustee so that the trustee can quickly sell the property if the borrower defaults.
As you can see, title is a concept of ownership that has many different forms. Having title to a property and a deed conveying this title is not as straightforward as it may seem. Many property owners do not clearly understand the wide variety of title rights, and may not realize which ones they have and do not have. For example, owners who do not possess the mineral rights to their land are frequently unaware of this fact.
Though the concept of title and how it is transferred can be confusing, it is helpful to understand the basic theory behind it. Without this understanding, it is difficult to know what exactly you’re buying when you make what might be the biggest purchase of your life.
The Difference Between Title and Deed
