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A Primer on Real Estate Law - "The Deed"
By: Alex Rechenmacher

You've probably attended a real estate closing for your own hoome purchase.  If so, you've witnessed the heavy volume of paper that passes between the parties and their attorneys.  Well, the single most significant document is the deed. 

The deed to your home is an important legal document which should be kept in a safe place, and somewhere that it will not get lost.  While the term "deed" can refer to any of several written legal instruments properly notarized or sealed, the State of Illinois notably uses properly executed deeds, recorded by your local county recorder's office, as a mechanism for tracking the proper ownership of real estate over time. 

 

The most recently executed deed regarding your property should represent who maintains title to the property, whether it be you individually, some form of trust ownership, a landlord or some other arrangement.  This "official" ownership of your home has several very important legal implications.  

Depending on the type of deed that transfers ownership to you, that ownership may come with certain promises, or "covenants" which guarantee your right to the property.  There are generally six (6) types of covenants which will accompany the most encompassing of deeds, the General Warranty Deed, and these include:

 

  • Covenant of Seisin: represents (promises) that the conveyor is, in fact the current title holder to the property;
  • Covenant of Right to Convey: represents that the conveyor has the valid right to transfer possession and title to the property to someone else;
  • Covenant Against Encumbrances: represents that the property is not 'encumbered' by any other ownership interests, liens, easements or other restrictions not otherwise mentioned in the deed;
  • Covenant of Warranty and Covenant of Quiet Enjoyment: represents that they conveyor will protect the buyer if anyone comes along at a future date and claims to have a competing interest in the property; and
  • Covenant of Further Assurances: assures the buyer that the conveyor will take any necessary steps in the future to fix any issues and completely transfer the ownership to the buyer. 

 

A deed of general warranty, including the above promises are most common, although far from mandatory, in real estate transactions and are also used when individuals convey the house from their personal ownership to a revocable trust or other estate planning vehicle.  

Special Warranty Deeds are less inclusive, and generally will only promise to the buyer that no ownership issues had arisen during the conveyor's ownership.  A Quit Claim Deed is even less inclusive.  It promises to the buyer that the conveyor will abandon any future claims to the property, but it makes no promises that previous title ownership of the property is otherwise "clean".  An Executor's Deed, Administrator's Deed or Trustee's Deed, where the conveyor is simply managing the property for a time and distributing it according to direction, will generally be in the form of a quit claim deed.