A deed can take several forms, depending on the extent of the grantor’s pledges to the grantee. Regardless of any guarantees the deed offers, however, the grantee will want additional assurance that the grantor has the right to offer what the deed conveys. To obtain this protection, grantees commonly seek evidence of title.
The most common deed forms are the:
- general warranty deed,
- special warranty deed,
- bargain and sale deed,
- quitclaim deed,
- deed in trust,
- trustee’s deed, and
- deed executed pursuant to a court order.
General warranty deed A general warranty deed provides the greatest protection of any deed. It is called a general warranty deed because the grantor is legally bound by certain covenants or warranties (promises).
- Covenant of seisin—The grantor warrants that she owns the property and has the right to convey title to it. (Seisin simply means “possession.”) The grantee may recover damages up to the full purchase price if this covenant is broken.
- Covenant against encumbrances —The grantor warrants that the property is free from liens or encumbrances, except for any specifically stated in the deed. Encumbrances generally include mortgages, mechanics’ liens, and easements. If this covenant is breached, the grantee may sue for the cost of removing the encumbrances.
- Covenant of quiet enjoyment—The grantor guarantees that the grantee’s title will be good against third parties who might bring court actions to establish superior title to the property. If the grantee’s title is found to be inferior, the grantor is liable for damages.
- Covenant of further assurance —The grantor promises to obtain and deliver any instrument needed to make the title good. For example, if the grantor’s spouse has failed to sign away dower rights, the grantor must deliver a quitclaim deed (discussed later) to clear the title.
- Covenant of warranty forever —The grantor promises to compensate the grantee for the loss sustained if the title fails at any time in the future.
Illinois law provides that a deed using the words “convey and warrant” implies and
includes all covenants of general warranty, which are as binding on the grantor, her heirs, and personal representatives as if written at length in the deed. These covenants in a general warranty deed are not limited to matters that occurred during the time the grantor owned the property; they extend back to its origins. The grantor defends the title against herself and against all others as predecessors in title. In addition, it is sufficient for a general warranty deed to recite only nominal consideration.
Special warranty deed A special warranty deed contains two basic warranties:
- Warranty that the grantor received title
- Warranty that the property was not encumbered during the time the grantor held title, except as otherwise noted in the deed
In effect, the grantor defends the title against herself but not against previous encumbrances. The granting clause generally contains the words “grantor remises, releases, alienates, and conveys.” The grantor may include additional warranties, but they must be specifically stated in the deed. In areas where a special warranty deed is more commonly used, the purchase of title insurance is viewed as providing adequate protection to the grantee.
Bargain and sale deed In some states, a bargain and sale deed contains no express warranties against encumbrances. It does, however, imply that the grantor holds title and possession of the property.
The words in the granting clause are “grant, bargain, and sell.” A grant, bargain, and sale deed conveys a simple title with the following covenants:
- the grantor holds a fee simple estate,
- the title is free from encumbrances made by the grantor except those listed in the deed, and
- the grantor warrants quiet enjoyment.
An Illinois bargain and sale deed is similar to a warranty deed but less complete in its warranties. The buyer should purchase title insurance for protection.
Quitclaim deed A quitclaim deed provides the grantee with the least protection of any deed. It carries no covenants or warranties and generally conveys only whatever interest the grantor may have when the deed is delivered. If the grantor has no interest, the grantee will acquire nothing.
A quitclaim deed can convey title as effectively as a warranty deed if the grantor has good title when she delivers the deed, but it provides none of the guarantees that a warranty deed does. Through a quitclaim deed, the grantor only “remises, releases, and quitclaims” her interest in the property, if any.
A quitclaim deed frequently is used to cure a defect, called a cloud on the title. For example, if the name of the grantee is misspelled on a warranty deed filed with the Recorder of Deeds.
In Illinois a quitclaim deed uses the words “convey and quit claim,” and conveys in fee all the grantor’s existing legal and equitable rights held at the time of delivery.
Deed in trust A deed in trust is the means by which a trustor conveys real estate to a trustee for the benefit of a beneficiary. The real estate is held by the trustee to fulfill the purpose of the trust.
Trustee’s deed A deed executed by a trustee is a trustee’s deed. It is used when a trustee conveys real estate held in the trust to the beneficiary. The trustee’s deed must state that the trustee is executing the instrument in accordance with the powers and authority granted by the trust instrument.
Deed executed pursuant to court order Executors’ and administrators’ deeds, masters’ deeds, sheriffs’ deeds, and many other types are all deeds executed pursuant to a court order. These deeds are established by state statute and are used to convey title to property that is
transferred by court order or by will. The form of such a deed must conform to the laws of the state in which the property is located.
One common characteristic of deeds executed pursuant to court order is that the full consideration is usually stated in the deed. Instead of “$10 and other valuable consideration,” for example, the deed lists the actual sales price.
