Distinguishing Types of Deeds
A deed may include all, some, or none of the deed covenants. It also may qualify and customize those covenants as the parties agree in their purchase agreement. The purchase agreement may specify exactly which title covenants the grantor’s deed must include, but typically the agreement uses general labels indicating the types of title covenants that will be included in the deed. The four common labels are as follows:
General warranty deed
Special warranty deed
Bargain and sale deed
Warranting title generally
A general warranty deed includes deed covenants warranting title against valid claims by anyone other than the grantee. But the parties can agree that the grantor will give a general warranty deed that includes fewer of the deed covenants. What makes a warranty deed “general” is that the deed covenants warrant “generally” that no one else — other than owners of any interests specifically excepted in the deed, of course — has a claim to which the grantee’s title will be subject.
The general warranty deed is probably the most common type of deed. Courts generally assume that if a purchase agreement says the grantor will give the grantee a “warranty deed,” that means a general warranty deed.
A general warranty deed may expressly state the general warranties. The following are examples of how each of the covenants may be expressed:
Covenant of seisin: “The grantor covenants that he is lawfully seized of the property in fee simple absolute.”
Covenant of right to convey: “The grantor covenants that he has the right to convey the property to the grantee.”
Covenant against encumbrances: “The grantor covenants that the property is free from all encumbrances except as described herein.”
Covenant of warranty: “The grantor, the grantor’s heirs, and personal representatives will forever warrant and defend the foregoing title in the grantee, her heirs, and assigns against all lawful claims and demands.”
Covenant of quiet enjoyment: “The grantor guarantees the grantee, her heirs, and assigns in the quiet enjoyment of the premises.”
Covenant of further assurances: “The grantor will execute such further assurances of the property as reasonably requested.”
A deed may be a general warranty deed without expressly stating the warranties. The statute of frauds requires that title covenants be written, but many states have statutes that say a deed using certain words, such as “conveys and warrants” or even “grants” has the effect of making the deed covenants of title, even though the covenants aren’t stated in the deed.
Lawyers drafting and reviewing deeds need to look for such a statute and make sure they use language consistent with their clients’ intentions.
Warranting title specially
A special warranty deed warrants title only against title defects that the grantor created or allowed to be created, not title defects that existed before the grantor owned the property. It’s “special” because the warranties are limited in this way, not because it’s better.
Like a general warranty deed, a special warranty deed may include all the title covenants or just some of them. A deed may make any of the covenants generally or specially. In fact, a deed can make some covenants generally and other covenants specially.
A special warranty deed may expressly make the warranties specially. It usually does so by saying something like “the grantor covenants and warrants the following against the claims of the grantor and all persons claiming by, through, or under the grantor.”
Then the deed lists the covenants using the same kind of language used in a general warranty deed. The types of promises are the same; the difference is that the special warranty deed makes no covenants about title defects that preceded the grantor’s ownership.
Some state statutes specify language that makes special warranties without stating them in the deed. For example, a state statute may say that if a deed says the grantor “warrants specially” the property, then it makes the usual deed covenants specially.
Or a statute may say that if the deed says that the grantor “conveys and warrants [the property] against all who claim by, through, or under the grantor,” the deed thereby makes the usual deed covenants specially. Lawyers must know the applicable state statutes or risk using words that produce unintended effects.