What are recitals? Why are they important? And what are some GOOD examples?

Simply put, recitals are statements of fact, found within legal documents, that by themselves do not carry much legal weight; however, when recitals are taken into context within the bigger picture they make up, (i.e., the entire contract, deed or a series of deeds), they help to explain numerous questions of fact found within the legal record. Recitals can be useful to explain marital status, the consideration (payment) made for a property conveyance, or even just background information as to why the conveyance is being made in the first place. As mentioned prior, recitals can be found in all legal documents, including contracts and wills, but this article will specifically focus more so on recitals found within real property deeds.

Recitals are a very important part of every single deed. Most frequently, they are used to help us identify the marital status of the grantor and the grantee, which in a community property state, like that of Texas, can be extremely important for a litany of reasons. Further still, adding to the importance of recitals to a transfer of real property in a community property state, will be to add in the consideration paid for the conveyance of property. This can help address whether or not the conveyance was made as a gift. Why is that important? Because Section 3.001(2) of the Texas Family Code states that gifts are the separate property of the receiving party, regardless of being married or single. Again, this has huge implications for leases, royalties, and of course, divorce. Lastly, another common reason for recitals is to address homestead issues, which is useful in addressing property liens and taxes and if both spouses should be executing a Deed or lease of property.

First let's start out with marital status recitals. Knowing whether or not a party to a real property conveyance is married or single is very important, as Texas is a community property State. This has implications, largely for divorce, but also for homestead too. Property held in the name of one spouse, even as their separate property, still requires the joiner of the other spouse in conveyance of said property. This includes oil and gas leases. A common example of this scenario would be a Deed wherein the vesting deed into the current owner included recitals stating, “to John Doe, a single man” and then, subsequently, a few years later, John Doe married a beautiful girl Jane, and designates the land he purchased in the 2008 deed as his homestead. Subsequently, several more years later an oil and gas lease is taken out covering the same lands; however, now the recital states “John Doe, a married man, dealing with his sole and separate property”. One who has a basic understanding of community property and separate property might see a recital such as the prior in a lease and think that it would be acceptable for John Doe to sign an Oil and Gas lease covering the property his home is located on, as apparently, he received the land whilst single, thus making it his separate property; however, you would be wrong. Texas Family Code Section 5.001 states that homestead property may not be sold even by piecemeal, as is the case with an oil and gas lease, without the joinder of both spouses. Here, a ratification of the oil and gas lease taken out by John Doe would be required by his now wife, Jane Doe to validate the lease.

Another common use of recitals is to explain breaks or gaps within a chain of title. Say you have a Deed conveying property into Pearl Oldstien way back in 1963, and then the next Deed conveying the same property is by Bobbie Oldstien, Trevor Oldstien and Jennifer Oldstien, grantors, and includes a recital stating, “sole heirs of Pearl Oldstien”. Now, by itself this would still create issues in title. Ideally a probate has also been filed in the same county where the property is located, and therein Pearl’s Will gives this tract of land to the three named grantors, or if she died intestate (without a will) and was only survived by her three kids, the same being Bobbie, Trevor and Jennifer. Again, there you would also want an Affidavit of Heirship filed of record too, but the inclusion of “sole heirs of Peal Oldstien” is helpful and useful, nevertheless. As it triggers the reader to think about what to look for or what to do next. (Find the probate or Affidavit of Heirship).

Lastly, and also very common, is a recital that explains the consideration given for a transaction or deed. This, as with marital status, is a helpful and needed aid in classifying the land conveyed as the grantee’s community or separate property. A common example of a gift, which would then create a separate property interest in the grantee would be a recital stating “Consideration: The love and affection I hold for grantee”, or I have even seen a nice “the love and affection two brothers have for their sister” - either way, both create a separate property interest in the grantee, which would not be affected by a future divorce, in Texas.

Another less common recital of marital status is the restatement of someone being single. A frequent example of this is Bobby Doe and wife, Betty Doe to Willson Wayne, a single man. However, a few less common recitals, that should be included in Deeds, and more likely to be seen in the modern era, might be for a couple that is not married but chooses to buy property together. A recital for that scenario would be: “Betty Boop, a single woman and Mark Phelps, a single man.” Lastly, a recital which I have yet to personally see, but should nevertheless be included would be: “Joe McNarra and John Anderson, a married couple”. Thus, leaving no room for confusion about the community property status of property owned by a same sex couple.

To wrap things up, I could really go on and on about some of the more amazing recitals I've seen in the years of doing oil and gas title examinations, specifically the recitals included in older deeds. For example, there was a time when marital status was recited as “John Doe, I being a married man and my wife, Betty Doe, living at the time I acquired the property herein conveyed, is still in life, but we have never occupied or claimed said property as or for our home or homestead. We own, occupy and claim other property in Bexar County, Texas, as and for our homestead.” - It appears lawyers were once paid by the word before the mass adoption of the personal computer. Anyway, recitals need to be in every single deed you draft, with no exception! The aid and help provided to future purchasers of property is truly priceless.