Covenants of Title

From a Dale Whitman post to DIRT

First of all, there are six possible deed covenants; they have somewhat overlapping and somewhat distinct coverages.

The three “present” covenants are (1) against encumbrances, (2) Seisin; and (3) right to convey. The three “future” covenants are (1) covenant of warranty; (2) quiet enjoyment; and (3) further assurances.

Traditionally a “full warranty” deed contained all 6 covenants, but in practice a deed might contain any subset of them, depending on its wording. Likewise, in many states the use of specific words (e.g., “grant” or “convey and warrant”) may, by virtue of a local statute, implicitly include some but not necessarily all of the 6 possible covenants. So you have to look closely at the wording of the deed and the statutes to see which covenants are actually present in any particular deed.

There are two main distinctions between the “present” and “future” covenants:

First, the “present” covenants are considered to be violated if there’s a violation (e.g., a failure of title or an undisclosed encumbrance) at the time the deed is delivered, while the “future” covenants are violated only if and when the grantee is evicted by someone with better title. “Evicted” doesn’t necessarily mean being physically thrown off the land, but it does mean that someone with better must actively assert a claim to the land.

Second, the “present” covenants don’t run with the land, but merely protect the original grantee. Persons on down the chain of title can’t sue on the “present covenants.” On the other hand. “future” covenants do run with the land, so that subsequent grantees down the chain of title can sue on the “future” covenants.