A warranty deed is a certain type of deed to property through which the seller guarantees that they have “clear title” to the real estate. The warranty states that the seller is the true owner, and that there are no encumbrances on the property that would hinder the sales transaction (such as outstanding mortgage debt).
In addition, the warranty states that the seller has a legal right to sell the property. This is important, because even though a person might be the legal owner of the property, they might not always have an automatic right to sell the property. The two main types of warranty deeds are “general warranty” and “special warranty” deeds.
A general warranty deed guarantees that the seller is both the owner of the real estate, and is legally entitled to sell it. It also contains the six “covenants for title”, which grant the new owner basic rights with regards to the property. These six covenants or promises are broken down into two categories- present and future covenants.
The three present covenants are: The covenant for seisin (conveyance and transfer rights); the right to convey; and the covenant stating there are no encumbrances on the land. These three are enforceable immediately upon the purchase of the land.
The three future covenants are: Quiet enjoyment (the right to be free from interruptions or challenges to ownership); Covenant of general warranty; and “Further assurances”. These last three extend into the future and are expected as long as the party owns the property.
Another type of warranty deed is called the special warranty deed. These are similar to general warranty deeds with one major exception.
In a general warranty deed, the owner of the property makes their guarantees and promises regarding defects during the entire history of the property. In comparison, with a special warranty deed, the seller is only making promises that defects would not be found in the time that they were the owner.
Thus, special warranty deeds speak specifically to the ownership period of the seller, and do not make any promises regarding previous owners or title holders. Therefore special warranty deeds are somewhat limited in their scope compared to general warranty deeds. Special warranty deeds are gaining popularity because of their close association with foreclosure proceedings.
Deed disputes usually require a title search in order to clarify the points of legal contention with deed. Title searches can be performed through a local or county recorder’s office, wherein the parties may look through the history of ownership for the property. The title search should reveal the way that the property was passed on in the past, and should reveal whether there are any outstanding defects or encumbrances on the property’s title.
It should be noted that a title search can sometimes get complicated very quickly, especially if the property is older and has passed through many different owners. It’s usually advisable that you work very closely with an experienced property lawyer who can help with such tasks as title searches.
If a title search still doesn’t solve the issues, it may be necessary to file a lawsuit in order to obtain a judgment from the court. This is usually filed as a “quite title” proceeding, which aims at clarifying any issues with the title to the property.
Warranty deeds can help ensure that a real estate transaction is properly recorded. If you need assistance with drafting or reviewing a warranty deed, you may wish to hire a qualified lawyer in your area. Your attorney can help you with the legal paperwork, and can provide you with legal advice if you have any questions. Also, your lawyer can represent you in a court of law if you need to file a lawsuit regarding the property.
Last Modified: 01-11-2013 01:52 PM PSTLaw Library Disclaimer
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