How do I prove Fraud or Forgery?
Fraud and forgery occur too frequently in real estate transactions. You will find fraud and forgery in probate law, business law, bankruptcy law, construction law, family law, etc. Fraudulent document formation and forged legal documents are the most common types of fraud and forgery found in real estate law. In order to prove fraud or forgery, however, it will either be proved false or true through testimony of the person whose signature is meant to be on the document, or a forensic document examiner will be brought in to make an assessment of the document.
Understanding the Deed Basics
No matter which state you find yourself; every state demands specific language which must be included in order to effectively convey an interest in property.
A real estate deed must contain at minimum:
- A title clearly stating the nature of the document (warranty deed, grant deed, quitclaim deed, and so on)
- The name of the property’s owner of record (the grantor)
- A granting clause that states the grantor’s intent to convey the property to the grantee
- The purchaser’s name (the grantee)
- The signature and printed name of the grantor or an authorized representative
- An acknowledgment by a notary
A Valid Conveyance
For a conveyance to be valid, the deed must be ‘delivered’ to AND it must be accepted by the grantee. There are a couple of different way to ‘deliver’ a deed since placing the deed in the grantee’s hand isn’t always an option. Texas allows for what is called ‘constructive delivery’ which presumes the deed has been acknowledged and recorded. A deed signed and acknowledged by the grantor in the presence of two or more credible, subscribing witnesses qualifies for recording, even though it is not notarized. However, one of the witnesses must later appear before a notary to acknowledge and swear that the witness:
- saw the grantor sign or personally acknowledge the signature and
- signed at the grantor’s request.
The notary must then certify the acknowledgment by signing or affixing an official seal. This certification is necessary to validate the acknowledgment so that the deed or other document can be accepted for recording.
If the document involves a conveyance “Filing a deed in the wrong county has the same effect as not having filed at all.” The record must reflect the grantee’s name and the county where the land is located. Once a deed is acknowledged, it should then be filed or recorded in the county where the land is located. Recording a deed gives future buyers constructive notice to the chain of title. It is always recommended to research the chain of title before purchasing property.
Forged deed lacks effectiveness ab initio (from its outset) and neither consent, waiver, estoppel, implications, delivery, nor recording can give any legal effect to such instrument. Commonwealth Land Title Ins. Co. v. Nelson, 889 S.W.2d 312 (1994). Title to land cannot pass under forged deed; fact that grantee and his assigns are innocent purchasers makes no difference because no person can be an innocent purchaser of land where there is a forgery in the chain of title. Id.
Texas common law defines forgery as “the making or altering of a written instrument purporting to be the act of another.” Nobles, 533 S.W.2d at 925-26. Texas Supreme Court has stated “one who signs his true name, and does not represent himself to be someone else… does not commit forgery because his act does not purport to be that of another.” Id. at 926. Additionally, “the rule is also clear that one who signs his true name, purporting to act as the agent of another, has NOT committed a forgery.” Id.
Some examples of real estate fraud can include but are not limited to:
- Purporting to sell or convey property that the grantor does not own;
- Purporting to sell or convey property for which the grantor lacks sufficient authority to transfer (using authority under a Power of Attorney/ an appointee assigned to a deceased’s estate); and
- Purporting to lease property which belongs to another
Unlike forgery, a deed obtained by fraud is not absolutely void, but rather, it is voidable and must be set aside in judicial proceeding. Lighthouse Church of Cloverleaf v. Texas Bank, 889 S.W.2d 595 (1994).
Voidable means the fraudulent deed will stand until or unless it is set aside or invalidated by the court. Additionally, when claiming fraud in Texas, you will find more limitations when making a real estate fraud claim. Limitations stated under the TEX. CIV. PRAC. & REM. CODE § (a)(4) say a suit for real estate fraud must be brought within four (4) years of when the fraud should have been discovered by reasonable diligence. Once the four (4) year period passes, the fraudulent deed will stand as the valid deed. While forged deeds do have such limitations and can be declared void at any time.
If you believe fraud exists whether in a deed given to you or someone else, it is very important to contact an experience real estate attorney immediately and have it set aside by the court, otherwise the deed is legally valid and perfect and will stand.
Contact a seasoned Attorney from Guerra | Days Law Group
Fraud and forgery in real estate can come in more ways than those explained above. If you need help reviewing a document or suspect fraud or forgery in a legal transaction, then call us immediately.