The present covenants of title are the three promises a seller makes in a warranty deed about the state of ownership at the exact moment the deed is delivered: the covenant of seisin, the covenant of the right to convey, and the covenant against encumbrances. If any of the three is false, the breach happens instantly at closing, not when the problem later comes to light. That timing shapes everything else about how these promises work, including how long you have to sue and whether a later buyer can rely on them at all.
Covenant of Seisin
Seisin is the seller’s promise that they actually own the property described in the deed, and that they own the exact type of estate the deed claims to convey. In most residential sales that estate is a fee simple absolute: complete, unrestricted ownership with no expiration.1St. John’s Law Scholarship Repository. The Covenant of Seisin
The covenant is broken whenever the seller’s real interest doesn’t match the deed. A seller who holds only a life estate but purports to convey the full fee has breached it. So has a seller whose deed describes a whole lot when a neighbor actually owns a ten-foot strip of the backyard.1St. John’s Law Scholarship Repository. The Covenant of Seisin
Partial breaches are handled proportionally. Where grantors warranted a fee simple but held only a life estate, courts have allowed the buyer to recover a proportional share of the purchase price, deducting the value of the life estate the buyer did receive.1St. John’s Law Scholarship Repository. The Covenant of Seisin
Covenant of the Right to Convey
Owning a property and having the legal power to sell it are not always the same thing. The right-to-convey covenant guarantees the seller has the authority to execute the deed and move the title. In most sales between individuals it overlaps almost entirely with seisin. The two diverge where some legal restriction limits the seller’s power to act.
A trustee can hold legal title and still lack authority to sell under the terms of the trust. A single co-owner cannot convey the entire property without the other owners’ consent. A person under a court order restraining the transfer of assets cannot legally close. In each case the seller has an ownership interest but no legal right to pass it on, and this covenant catches the gap that seisin alone would miss.
Representative sellers add another layer. A corporate officer selling company-owned real estate typically needs board authorization. An executor, guardian, or court-appointed administrator draws authority from a court order, and a defect in that order can make the deed void or voidable. If you are buying from anyone acting in a representative capacity, the underlying authorization document is worth checking before you close.
Covenant Against Encumbrances
This is the promise that no undisclosed third-party claims, liens, or restrictions sit on the title at delivery. The first two covenants concern who owns the land and who can sell it. This one concerns what comes attached.
Encumbrances fall into two broad groups. Financial encumbrances include unpaid mortgages, tax liens, judgment liens, and mechanics’ liens from contractors the prior owner never paid. Non-financial encumbrances include easements for utility companies or neighbors, restrictive covenants limiting use or development, and building code violations recorded against the property. Discover a $5,000 mechanics’ lien from a renovation the previous owner never paid for, and you have a clean breach claim.
The covenant only reaches encumbrances that were not disclosed. Anything the deed expressly references or that you agreed to accept is carved out, which is why deeds routinely say things like “subject to easements of record” or list specific restrictions by name. If you knew about the burden and closed anyway, nothing has been broken. Read the exceptions paragraph carefully before signing, because every item there is excluded from this protection.
Some jurisdictions also distinguish between visible and hidden encumbrances, treating an obvious utility easement or well-worn path as something the buyer had constructive notice of even if the deed is silent. This rule varies widely and is far from universal, so it is not safe to assume one way or the other without local legal advice.
Why “Present” Matters
A present covenant is a snapshot of the title at the moment the deed changes hands. There is no grace period and no future triggering event. The breach either exists at delivery or it never exists.
Three practical consequences follow from that.
The statute of limitations starts running on closing day. Most states give between four and six years to file suit; a handful allow longer. A buyer who doesn’t discover an ownership gap until year seven may already be time-barred, even though the problem was real from the start.
Present covenants are personal to the original buyer. They do not automatically run with the land to subsequent purchasers.2Legal Information Institute (LII). Covenant That Runs With the Land If you buy a house from someone who received a defective title five years ago, you generally cannot reach back to the original seller. The one workaround is assignment: the original buyer can transfer the breach claim to a later purchaser as a “chose in action,” but it has to be negotiated and documented, not assumed.3Fordham International Law Journal. Covenants of Title and the Assignment of Breach Claims
By contrast, warranty deeds also contain three future covenants — quiet enjoyment, warranty, and further assurances — which stay dormant until some later event (such as a third party ousting the buyer) triggers them, and which do run with the land to later owners.4Villanova Law Review. Warranties of Title – A Modest Proposal If you are a second or third buyer worried about an old defect, the future covenants are what you lean on; the present covenants are usually spent.
Which Deeds Actually Include These Covenants
Not every deed carries present covenants, and the differences are large.
- A general warranty deed contains all six covenants and covers the full history of the title. If a defect originated decades ago under a prior owner, the seller is still liable. This is the strongest form of buyer protection in residential sales.
- A special warranty deed contains the same covenants but limits them to the seller’s own period of ownership. Defects that arose before the seller acquired the property are not covered. Commercial transactions and bank-owned properties frequently use this form.
- A quitclaim deed contains no covenants at all. The seller transfers whatever interest they have, if any, with no promise about ownership, authority, or encumbrances. The buyer takes the title entirely at their own risk.
This is where buyers most often get caught out. A quitclaim deed from a family member or in a quick sale may seem fine at the time, but it leaves no legal recourse if the title proves defective. Anyone paying significant money for real property should insist on a warranty deed.
Remedies When a Present Covenant Is Broken
Recovery runs through civil court, and you have to prove the defect existed at the moment of delivery, not that it developed afterward.
Damages depend on which covenant was broken. For seisin and right to convey, courts generally measure damages as the difference between the purchase price and the value of what was actually received: a $300,000 property worth $250,000 with the ownership defect produces $50,000 in damages. For encumbrances, the typical remedy is the cost of removing the burden from the title; a $5,000 mechanics’ lien means $5,000 in damages, not a broader diminished-value claim. For partial breaches of seisin, damages are proportional to the share of the interest the seller didn’t actually own.
Recovery is generally capped at the original purchase price. Even if the property has tripled in value since the sale, you cannot recover more than you paid. Some courts also allow attorney’s fees and costs, particularly where the deed itself authorizes them.
The limitations clock is the real trap. Because the breach happens at closing, the time to sue starts running the day you take title, regardless of when you discover the problem. A careful title search before closing is worth far more than a lawsuit years after it.
How Title Insurance Fits Alongside These Covenants
Deed covenants and title insurance protect against overlapping risks but work differently. A covenant is a promise from the seller; title insurance is a contract with an insurer. Enforcing a covenant means suing the seller personally and collecting a judgment. Title insurance puts a company with the resources to pay behind the claim.
An owner’s policy also reaches defects a title search can miss entirely: forged documents in the chain of title, undisclosed heirs, clerical recording errors, and similar hidden risks. It typically lasts as long as you own the property.
The two systems interact. When a title insurer pays a claim, it can step into the buyer’s shoes and sue the responsible seller for breach of the deed covenants, so long as it actually compensated the buyer for a covered loss and a third party bears primary responsibility. Courts have blocked these subrogation claims where the insurer’s own negligence contributed to missing the defect.5FindLaw. Stewart Title Guaranty Company v Kelly
Neither protection replaces the other. Covenants cost nothing extra but depend on a seller who is willing and able to pay. Title insurance has an upfront cost but comes with institutional backing. Most real estate attorneys recommend having both.