§5.4 - Covenants and Warranties of Title

• Jurisdiction: Washington

§5.4 COVENANTS AND WARRANTIES OF TITLE

With the exception of a quitclaim deed, each of the deed forms previously mentioned will convey, as of the date of delivery, certain covenants and warranties of title that run to the grantee, its heirs, and assigns. These warranties differ by the type of instrument used.

(1) Warranties defined

Pursuant to statute, a warranty deed covenants that, as of the date of delivery, (i) grantor is seised of an estate in fee simple (warranty of seisin); (ii) grantor has a good right to convey that estate (warranty of right to convey); (iii) title is free of encumbrances (warranty against encumbrances); (iv) grantee, its heirs, and assigns, will have quiet possession (warranty of possession); and (v) grantor will defend the grantee's title (warranty to defend). RCW 64.04.030; 17 William B. Stoebuck, WASHINGTON PRACTICE, REAL ESTATE: PROPERTY LAW §7.2 (1995).

A bargain and sale deed limits the covenants of warranty to three: a warranty of seisin, a warranty against encumbrances, and a warranty of quiet possession. These covenants warrant only against the acts of the grantor and do not protect against title defects that may have arisen during the ownership of previous owners. Graham v. Findahl, 122 Wn.App. 461, 93 P.3d 977 (2004).

Although the warranties given under a special warranty deed vary depending on the express words of the grant and limitations, they are generally similar to those given in a bargain and sale deed. Like a bargain and sale deed, a special warranty deed therefore protects the grantee only against a claim arising by, through, or under the grantor. Cent. Life Assurance Soc'y v. Impelmans, 13 Wn.2d 632, 126 P.2d 757 (1942).

A warranty deed covenants against both known and unknown title defects. Irrespective of the type of warranty instrument used, the grantee's knowledge of the existence of a defect or encumbrance will not defeat the warranties contained in the deed. Fagan v. Walters, 115 Wash. 454, 197 P. 635 (1921).

Practice Tip: When conveying title by any warranty instrument, attach a list of permitted exceptions to the covenants of warranty contained in the deed. Because the grantee's knowledge of the existence of a defect will not affect the warranties contained in the deed, the grantor should be permitted to except liens, encumbrances, and other matters that affect title and that grantee has agreed to accept as permissible title exceptions.

(2) Differences in warranties among deeds

As noted above, the covenants of warranty differ by the type of instrument used. A warranty deed grants five distinct covenants, a bargain and sale deed only three. What qualitative difference, if any, does this make in the type of title warranties a grantee receives? The short answer is none.

The warranties of seisin and the right to convey effectively carry the same covenant. Seisin was originally considered to be the formal act of completion of feudal investiture of title. Under American...