Covenant

Key Takeaways

• A covenant in a deed is a promise about the title being transferred, and the deed form the grantor signs decides which promises come with it.
• In Washington, the statutory warranty deed form in RCW 64.04.030 binds the grantor to its covenants as fully and with like effect as if they were written at full length in the deed.
• A bargain and sale deed under RCW 64.04.040 implies narrower covenants, reaching only encumbrances done or suffered by that grantor.
• Restrictive covenants that forbid conveyance, encumbrance, occupancy, or lease to people of a specified race or other protected characteristic are void under RCW 49.60.224, and honoring one in the chain of title is an unfair practice.

What It Means

A covenant is a binding promise. In a deed it is the grantor's assurance about the state of the ownership being handed over, and it does its work after closing, once the buyer has paid and the seller has walked away.

Covenants come in two families that students should keep apart. Title covenants run from grantor to grantee and describe what the grantor promises about the ownership itself: that the estate is what it appears to be, which is the Covenant Of Seisin; that nothing unexpected is attached to it, which is the Covenant Against Encumbrances; that the grantee will hold the property in peace, which is the Covenant Of Quiet Enjoyment; and that the grantor will stand behind the title if someone challenges it later.

Use restrictions are the other family. Those promises bind the land rather than the parties, limiting what may be built or how the property may be used, and they carry over to whoever owns the parcel next. A subdivision's rules about fence height or home business signage belong here.

The practical point is that title covenants are what a buyer sues on when the ownership turns out to be worse than advertised. They are the reason the deed form chosen at closing matters as much as the price agreed at mutual acceptance.

How It Works in Washington

In Washington, deed covenants are supplied by statute rather than by drafting. RCW 64.04.030 gives a short warranty deed form and provides that a deed in that form binds the grantor, the grantor's heirs, and personal representatives to covenants that at the time of the making and delivery of the deed the grantor was lawfully seized of an indefeasible estate in fee simple, that the premises were then free from all encumbrances, and that the grantor warrants quiet and peaceable possession and will defend the title against all persons. Those covenants apply as fully and with like effect as if written at full length in the deed, which is why a Washington statutory warranty deed can run a single paragraph and still carry the strongest protection available.

RCW 64.04.040 draws the contrast. A bargain and sale deed implies that the grantor was seized of an indefeasible estate in fee simple, free from encumbrances done or suffered by that grantor, and warrants quiet enjoyment against the grantor and the grantor's heirs and assigns unless limited by express words. The grantee may recover for breaches as if the covenants were expressly inserted, but the reach stops at what this grantor did. A problem created two owners back falls outside it.

Washington also polices covenants that restrict who may live somewhere. RCW 49.60.224 makes void every provision in a written instrument relating to real property that purports to forbid or restrict conveyance, encumbrance, occupancy, or lease to individuals of a specified race, creed, color, sex, national origin, citizenship or immigration status, sexual orientation, families with children status, honorably discharged veteran or military status, or with any sensory, mental, or physical disability, and makes it an unfair practice to insert such a provision or to honor it in the chain of title. RCW 49.60.227 supplies the cleanup: an owner, occupant, tenant, or homeowners' association board may strike the provision by a superior court action, or may file a restrictive covenant modification document with the county auditor without going to court, with the filing fee waived. A Racially Restrictive Covenant found in an old chain is void on its face, not merely unenforceable by custom.

Example

Elena buys a bungalow in Bellingham from Ray for $498,000 and takes a statutory warranty deed. Two years later, a title search run for her refinance turns up an easement recorded in 1974 that lets the neighbor drive across the north eight feet of her lot. The neighbor will release it for $16,500.

Because Ray delivered a deed on the RCW 64.04.030 form, the statutory covenants came with it. He covenanted that at the time of the making and delivery of the deed the premises were free from all encumbrances, and that he would defend the title against all persons. The 1974 easement was on record long before Ray signed, so Elena tenders the claim to him even though his deed was one paragraph long and said nothing about easements.

Change one thing and the answer flips. Had Ray used a bargain and sale deed, RCW 64.04.040 would limit his implied covenants to encumbrances done or suffered by him, and an easement created two owners before he bought falls outside that. The $16,500 would be Elena's to absorb, on the same house, from the same seller, at the same $498,000.

Common Mistakes and Exam Traps

• Present and future covenants break at different times. Seisin and freedom from encumbrances speak as of the making and delivery of the deed, while the promise to defend the title reaches forward and can be breached years later.
• Deed covenants and CC and Rs are not the same. Deed covenants run from grantor to grantee about the ownership conveyed, while CC and Rs restrict how the land may be used and bind future owners.
• A quitclaim deed carries no title covenants. Under RCW 64.04.050 it passes the grantor's then existing rights, so a buyer holding one has no covenant to sue on if the title fails.
• A discriminatory restrictive covenant is void, not just unfashionable. RCW 49.60.224 voids it and makes honoring it in the chain of title an unfair practice, and RCW 49.60.227 provides a fee waived process to strike it.