Deed types and title covenants

Deed Labels: The Promise Changes with the Form

Deed type determines how much title protection the grantee receives, while the covenant’s wording determines which particular promise was made. Assume the deed was validly delivered; delivery and acceptance belong to the sibling chapter on deed requirements and delivery.

A general warranty deed gives the broadest title protection. Its warranty ordinarily reaches defects and superior claims arising before, during, or after the grantor’s ownership, unless the deed expressly excepts a particular matter. The key question is not whether the grantor knew of the defect, but whether the deed’s warranty covers the source of the defect.

A statutory special warranty deed limits protection to claims arising by, through, or under the grantor. It does not generally protect against defects created by a predecessor in the chain of title or by an unrelated third party. The decisive fact is when and through whom the defect arose:

• A lien placed on the land by the current grantor is within the special warranty’s scope.

• A lien placed by the grantor’s predecessor is ordinarily outside that scope.

• A claim by someone who never derived an interest from the grantor is ordinarily outside that scope.

A quitclaim deed conveys whatever interest the grantor has, if any, without promising that the grantor owns the property or that title is free of defects. If the grantor owns nothing, the grantee receives nothing. A quitclaim deed therefore differs from a special warranty deed: the special warranty makes a limited promise, while the quitclaim makes no warranty of title.

Do not treat the deed’s label as a substitute for its operative language. A deed can contain additional express covenants or exceptions. “Subject to” or “excepting” identified easements, liens, or restrictions ordinarily removes those matters from the relevant warranty. The grantee’s knowledge of an encumbrance, by itself, does not necessarily eliminate a covenant against encumbrances; the important question is whether the deed excepted it.

This is closed-book: you must be able to state each deed type’s promise and limitation without consulting legal resources.

Six Covenants: Match the Promise to Its Trigger

The six traditional covenants of title divide into present covenants, breached, if at all, when the deed is delivered, and future covenants, breached only when a later event occurs.

Seisin concerns ownership of the estate promised. If a grantor purports to convey a fee simple but owns only a life estate, the covenant of seisin is breached because the grantor does not own the estate described. Seisin is not satisfied merely because the grantor owns some interest in the land.

Right to convey concerns authority to transfer, not simply ownership. A grantor may hold legal title but lack power to convey because of a legal disability, a trust restriction, or another limitation on authority. Thus, ownership and power can come apart: seisin may be present while the right to convey is absent. Conversely, a person may have authority to transfer a particular interest without owning the larger estate described in the deed.

The covenant against encumbrances asks whether another person has a right or interest that diminishes the property’s value or use. Common examples include mortgages, judgment liens, tax liens, easements, restrictive covenants, and outstanding leases. It is breached at delivery; the grantee need not first be evicted. A title defect such as failure of ownership is not automatically an encumbrance. The defect must be an additional burden or interest affecting the land.

An express exception matters. If the deed conveys land “subject to the recorded utility easement,” the grantor ordinarily has not breached the covenant against encumbrances as to that easement. The same reasoning applies to an identified mortgage or lease. A general warranty deed can therefore provide broad protection while still excluding specifically listed matters.

The covenant of warranty is a promise to defend the grantee against a lawful claim of superior title and to compensate for the resulting loss. Its focus is the grantor’s obligation when paramount title is asserted. The covenant of quiet enjoyment is closely related but focuses on the grantee’s undisturbed possession. The near-miss is this: warranty emphasizes defense and indemnity; quiet enjoyment emphasizes disturbance. Neither is breached merely because a title defect exists that has not produced a legally sufficient claim or disturbance.

The covenant of further assurances is narrower than warranty. It does not promise that the grantor will create a new title or pay for every defect. It requires reasonable additional conveyancing acts-such as signing a corrective instrument-when needed to perfect the title and properly requested. Refusal after the request is the trigger.

For a fact pattern, run the analysis in this order:

1. Identify the deed form and any express exceptions.

2. Ask whether the alleged problem concerns ownership, authority, an encumbrance, a superior-title claim, disturbance of possession, or a missing corrective instrument.

3. Classify the covenant as present or future.

4. Apply the correct trigger: delivery for seisin, right to convey, and encumbrances; later disturbance or refusal for warranty, quiet enjoyment, and further assurances.

5. Check who caused the defect. A general warranty reaches predecessor defects; a statutory special warranty ordinarily reaches only claims by, through, or under the grantor; a quitclaim provides no title covenant.

Present covenants traditionally do not run with the land: the original grantee’s cause of action ordinarily does not pass automatically to a remote grantee. Future covenants traditionally run with the land, allowing a later grantee who suffers the qualifying disturbance to enforce them. This timing-and-transfer distinction is separate from recording and chain-of-title analysis, which the sibling chapter covers.

One Deed One Claim: A Six-Choice Covenant Diagnosis

Olivia conveyed Blackacre to Peter by a general warranty deed that purported to transfer a fee simple.

Olivia did not own Blackacre and had no estate in it when she executed and delivered the deed.

No lien, easement, lease, or other encumbrance was involved, and no third person later disturbed Peter’s possession or asserted a superior-title claim.

Peter has not asked Olivia to execute any corrective document.

Which two covenants were breached when Olivia delivered the deed?

The Near-Miss Traps: Facts That Change the Result

• If the predecessor created the easement before the grantor acquired the land, a statutory special warranty ordinarily does not cover it; if the current grantor created it, the result changes.

• If the grantor owns a life estate but conveys a fee simple, seisin fails because the estate owned is smaller than the estate promised.

• If the grantor owns legal title but a trust restriction prevents sale, right to convey can fail even though seisin is satisfied.

• If a deed expressly says “subject to” a recorded easement, that identified encumbrance ordinarily is not a breach of the covenant against encumbrances.

• If no one has yet asserted superior title or disturbed possession, analyze present covenants rather than treating warranty or quiet enjoyment as already breached.

Three Short Drills: Deed Scope and Covenant Triggers

High-Yield Points - ⚡ Biggest Takeaways

General warranty reaches predecessor defects; statutory special warranty ordinarily reaches only grantor-connected claims. Seisin asks ownership, right to convey asks authority, and encumbrances ask for separate burdens on the land. Present covenants breach at delivery; warranty, quiet enjoyment, and further assurances require their later triggers.