Is it common practice for an attorney in North Carolina to prepare a General Warranty Deed without doing a title search allowing one heir t...

Question

Is it common practice for an attorney in North Carolina to prepare a General Warranty Deed without doing a title search; allowing one heir to sign over heir property to another heir without consent or knowledge of all heirs involved?

Also, should this attorney be allowed to notarize his own document?

Answer

Without looking at the actual document I cannot render an opinion.

Usually, non-warranty deeds or quitclaim deeds maybe are used to transfer property between heirs, but a warranty deed provides the heir acquiring the land with more protections. A warranty deed warrants (or promises) that there are no liens or other title defects with the property or things like judgments against the seller. If there are, could be an issue for the seller.

Since they are heirs, I presume they are familiar with the property and its issues and there is no need for a title search as there would be in the case of two strangers - one buying and the other selling property. In such case the buyer does a title search because he/she wants to know what he is buying.

Also title searches make a difference usually in cases where a common ancestor like a grandparent or great-grandparent owned a big chunk of land and the land devolved to children or grandchildren or relatives and has been subdivided. Those are the cases where you get title issues/boundary issues because surveys in the past were not always as accurate as today. If we are talking about a house in a more urban or suburban area with lots of development, chances are that the parcel in question has had the title looked at lots of times and is fine.

If it is an issue, do your own title search ... lawyers go back 60 years. If you are interested, go back further. You may learn something interesting about the property. All transactions against the property would be recorded and if the land is in NC then many of the counties are online and it is easy to look up the deeds.

Any heir has the power to transfer his/her share to anyone else, including another heir without the consent of the others unless there is some other restrictive covenant or document of some type. So if A, B, C, D and E all inherit a piece of land and E just wants his money, he can sell his share to B and A, C and D do not need to know about it and do not have to consent. A, C and D can do nothing to prevent the sale. If they do not like it then they can buy out the shares now owned by B or seek partition of the land.

As for a lawyer being a notary and notarizing a document which he drafted, I do not see a problem with this. You do not understand the difference between drafting and notarizing. A notary signature only attests to the fact that the people who signed the deed (here the heirs) appeared before the notary and were who they claimed to be. Nothing more. The notary does not check the lawyer's work for accuracy. If its wrong, its wrong - and having a notary signature does not make it less wrong or right.

So if the lawyer is a registered notary and has a valid stamp then I do not see a problem with this.