Why do so many property deeds specifically mention “love and affection”? What is so passionate about the deed to a property? This use of “love and affection” is based on consideration. While “consideration” sounds emotional and empathetic, consideration is about payment and sacrifice, and not about empathy.
Centuries of contract law in the United States make clear that, for a contract to be valid, there must be consideration. Consideration is not exactly payment, though it can involve payment. Essentially, each party to a contract must sacrifice something to show consideration of the contract. These mutual sacrifices show intent to enter into a contract; they are called “consideration” because they show that each party has truly considered the contract with genuine intent. Mutual consideration also provides a way for a court to determine whether a contract has been performed; that is, if there’s a dispute, a court can determine if each party has fulfilled their respective promises to sacrifice something.
The typical version of consideration involves one party agreeing to pay money to another party if the other party agrees to give something in return. This sounds basic and straightforward. However, note that a contract is an agreement to do something in the future on the condition that the other party holds up their end of the contract. A contract says “I’ll perform this action on the condition that you do this thing.” It is important to understand in the above example that the contract is not the actual providing of payment or service itself, it is the agreement to do so. For example, if you simply gave the other party 100$ as a gift, you did not create a contract. The act of giving someone money itself is not a contract, but a promise to give someone money on the condition that they do something in return is considered a contract.
Thus, a contract involves mutual, conditional promises by each party. These mutual promises are how a court can tell if a contract has been fulfilled if there is any doubt. If two parties agree that A will give B $300,000 if B gives A their house, the court can easily tell when the contract has been fulfilled if there is a dispute. If A gives $300,000 to B, but B refuses to give A their house, a court can easily tell that the contract has not been fulfilled, and can enforce this contract through specific performance (which is basically forcing B to perform the contract and give A the house).
Each party’s offer of consideration is essentially to provide proof of the contract if there is a dispute, and to provide a way for a court to tell if the contract has been executed. Note that a form of consideration must be valid in order to make the contract enforceable. An example of invalid contract consideration is a promise of “love and affection.” For example, if A and B make a contract that A will buy B a house if B provides love and affection, a court could easily determine if A had provided B the house, but could not easily determine if B had provided love and affection to A. If no dispute arises, and each party is satisfied with their end of this love-based property exchange, then a court would not have to become involved. However, imagine if B takes A to court, and B says that they have held up their end of the contract by providing love and affection, but A won’t give B the house. For the court to be able to force A to give B the house, the court would have to be able to figure out if B had provided love to A. Since “love and affection” is highly subjective, this type of consideration cannot be enforced in a contract; a court cannot determine if love and affection has been provided, and a court could not force a party to provide love and affection. Thus, love and affection is not valid consideration for a contract. A contract made for love and affection may be enforceable between two parties on their own, but cannot be enforced in a court of law.
So if “love and affection” is not valid consideration for a contract, why do so many property deeds cite “love and affection” as consideration for the property exchange? This is an extremely confusing topic in the real estate industry. Some of this confusion is based on a misunderstanding of what a deed is, exactly. A deed is not a contract, a deed is an instrument of conveyance. Smartasset.com has an incisive explanation of this difference, saying that “A deed is not a contract… instead, a deed is the action. It is the document which transfers the property described within. In a real estate transaction, the parties outline their terms of sale in one document (the contract). Then the property owner conveys that property in a separate document (the deed).”
A deed is the execution of an action, it is not a promise to perform future action. A deed is the instrument that transfers the title (ownership) of the property. Thus, a deed must be in writing. A contract, on the other hand, does not necessarily have to be in writing (with some exceptions), though it may be very difficult to enforce if it is not written.
Since a deed is the action of ownership transfer, when a deed states “consideration,” it is stating the consideration that has already been paid. When a deed is transferring property ownership that is a gift, the deed often will state “love and affection” as consideration, to clarify that there was no money exchanged, or other form of payment. This sort of consideration is valid for a deed, because a deed is not a contract that may or may not be executed; a deed is the execution of ownership transfer itself. It does not matter why you decided to transfer your property to another if you have already done so; since a deed is the instrument of transfer, there is no mutual exchange of promises to enforce in the future. A deed is somewhat like a contract that has already been executed.
It is important to note that the fact that a property was a gift could become relevant in the future as a result of a contract. For example, if a property owner owes money to creditors, and the property owner deeds their property to a close friend for free, those creditors might still be able to seize the property as payment for debts. In this case, the property owner is clearly trying to give away assets to friends or family rather than have them seized by debt collectors. The deed consideration of “love and affection” would likely help to prove this illegal debt avoidance. Thus, a deed could be invalidated in certain situations.
In real estate, it is important to understand the differences between deeds and contracts. Understanding these differences helps explain why certain consideration that may be valid for a property deed might not be valid consideration for a contract. Consideration like “love and affection” can be a valid explanation for an action that is already performed, like a deed, but is not consideration that a court could force one party to pay to another in a contract dispute.
References:
GA Code § 44-5-30 (2020)
James D. Gordon, III, Consideration and the Commercial-Gift Dichotomy, 44 Vanderbilt Law Review 283 (1991)
Joseph P. McKeehan, Is Moral Consideration on the Way Out in Pennsylvania?, 55 DICK. L. REV. 115 (1951)
Eric Reed, “Warranty Deed vs. Quitclaim Deed,” www.smartasset.com, New York, NY, https://smartasset.com/mortgage/warranty-deed-vs-quit-claim-deed, accessed 1/12/23
J. H. Verkerke, Contract Doctrine, Theory and Practice, CALI eLangdell Press, 2012
Debra Cassens Weiss, Promise of Love and Affection Isn’t Sufficient Consideration for Contract, Ohio Supreme Court Says, American Bar Association Journal, 2012
Alan M. White (2020) “Stop Teaching Consideration,” Nevada Law Journal: Vol. 20: Iss. 2, Article 5.
