What Is a South Dakota Quitclaim Deed without Covenants Form?
A property owner formally transfers title to South Dakota real estate by creating and recording a written, signed deed.1 Owners can choose between several types of deeds recognized by South Dakota law. A quitclaim deed without covenants is a type of deed for transferring real estate with no warranty or covenants of title. That means the owner signing the deed makes no promises about the validity or status of the property’s title.
In most states, a deed with no warranty of title is simply called a quitclaim deed. South Dakota’s real estate laws, though, imply covenants of title in standard quitclaim deeds.2 To transfer property with no covenants of title, a South Dakota quitclaim deed must expressly disclaim the implied covenants.3 A quitclaim deed without covenants unambiguously declares within the deed that the current owner transfers the property with no covenants or warranty of title.
What Is Warranty of Title?
Warranty of title is a guarantee the current owner gives the new owner when transferring real estate. The guarantee consists of a series of related promises—called covenants of title—about the validity and status of the transferred property’s title.4 A South Dakota deed with complete warranty of title provides the new owner with the following five covenants:
- Covenant of seisin. The current owner holds complete, unimpaired title to the property.
- Covenant of quiet enjoyment. The new owner’s possession of the property will not be disturbed by adverse legal claims.
- Covenant against encumbrance. The property’s title is free from encumbrances—such as liens, mortgages, or unpaid assessments.
- Covenant of further assurance. The current owner will sign future documents or otherwise take steps reasonably necessary to confirm the new owner’s ownership of the property.
- Covenant of warranty. The current owner will take responsibility for defending the transferred title against any legal challenges by third parties.
A deed with warranty of title gives the new owner the right to hold the prior owner responsible for problems with the property’s title. The new owner can sue the prior owner for breach of warranty or breach of covenant—similar to a breach of contract claim—if a title problem emerges.5 An owner who brings a successful breach of covenant claim can recover the financial losses caused by the flaw in the property’s title.6
Warranty of Title and South Dakota Quitclaim Deeds without Covenants
A property owner who signs a South Dakota quitclaim deed without covenants expressly disclaims any warranty of title. The new owner receives the entire interest the current owner holds when signing the deed.7 The current owner does not promise that the title is lien-free or that he or she actually owns the property.
A quitclaim deed without covenants does not necessarily mean that there are issues with the property’s title. The current owner makes no promises one way or the other. The new owner takes whatever interest the current owner can legally give in whatever condition it happens to be. It is effectively an as-is transaction.
Other Names for a South Dakota Quitclaim Deed without Covenants Form
What South Dakota calls a quitclaim deed without covenants, most states just call a quitclaim deed. The term quitclaim deed is imprecise for a deed transferring South Dakota real estate with no warranty of title. This is because—under South Dakota law—a deed that uses the word quitclaim includes implied covenants of title unless it specifically rejects the covenants.8
The term release deed can also describe deeds with no warranty of title—particularly when the signer is releasing an uncertain title or a partial interest to another co-owner. South Dakota lawyers and courts sometimes use release deed, but it is a relatively uncommon term.9
Lawyers in some states avoid the name quitclaim deed due to state laws that make title insurers leery of quitclaim deeds.10 In those states, a deed transferring property without warranty of title is often called a no-warranty deed or a deed without warranty.
How Does a South Dakota Quitclaim Deed without Covenants Form Relate to Other Forms of Deeds?
A South Dakota quitclaim deed without covenants makes a present real estate transfer to a new owner with no covenants or warranty of title. The deed shifts the risk of issues with the property’s title to the new owner. South Dakota’s real estate laws recognize other types of deeds that make a present transfer and keep some or all risk of title issues with the current owner.
South Dakota Quitclaim Deed without Covenants vs. South Dakota Warranty Deed
A South Dakota warranty deed form—sometimes called a general warranty deed—conveys property with complete warranty of title. The current owner provides the five covenants of title listed above and retains all risk of title defects in existence as of the date of the deed.11 The new owner can sue the current owner for breach of warranty if the new owner incurs financial loss caused by a title problem.12
South Dakota Quitclaim Deed without Covenants vs. South Dakota Special Warranty Deed
A South Dakota special warranty deed—sometimes called a limited warranty deed or grant deed—conveys property with special warranty covenants.13 South Dakota law assumes a deed includes special warranty covenants if the owner “grants” the property to the new owner.14
A South Dakota property owner who gives special warranty covenants promises that he or she has not transferred the property to anyone else and that the property’s title is free from defects caused by anything the owner did or failed to do. The covenants’ effect is that the current and new owners share the risk of title problems. The current owner bears the risk for problems that arose while he or she held title. The new owner bears the risk for anything else.
South Dakota Quitclaim Deed without Covenants vs. South Dakota Quitclaim Deed with Covenants
A South Dakota quitclaim deed with covenants—sometimes called just a quitclaim deed—functions nearly the same as a South Dakota special warranty deed. The current owner promises a good title subject to no defects arising from any action or inaction of the current owner.15 The biggest practical difference is that a quitclaim deed with covenants transfers the current owner’s entire interest as of the date of the deed but transfers no after-acquired title unless the deed expressly provides otherwise.16
Title Insurance and South Dakota Quitclaim Deeds without Covenants
A deed that conveys real estate with covenants of title protects the new owner by requiring the transferor to take responsibility for title-related issues. A transferee who takes title through a quitclaim deed without covenants is afforded no such protection and assumes all title-related risk. A property owner can mitigate the risk of financial loss caused by title problems by purchasing title insurance.
A title insurance policy covers financial loss resulting from issues like:
- Unknown liens, mortgages, or assessments;
- An uncertain title caused by a mistake in an earlier deed; or
- Adverse third-party claims against the property.17
The insurance company charges a one-time premium when issuing the policy—typically due at closing—and agrees to compensate the insured person for financial loss caused by title problems. Title insurers also arrange for a professional examination of the property’s chain of title before issuing a policy—increasing the chance that problems are identified before ownership is legally transferred.
Quitclaim Deeds and Other South Dakota Deeds Used in Estate Planning
Deeds used in estate planning are designed to transfer property to a new owner after the current owner’s death—typically without going through probate. Estate-planning deeds focus more on efficient end-of-life transfer than on guaranteeing a clear title. A South Dakota property owner selecting an estate-planning deed has two choices: transfer-on-death deeds or life estate deeds.
South Dakota Transfer-on-Death Deed Form
A South Dakota transfer-on-death (TOD) deed form is a statutory deed form that lets a living property owner name a beneficiary to take title when the owner dies.18 TOD deeds pass property outside probate without affecting the owner’s right to sell, transfer, or borrow against the property—or revoke or amend the deed—during life.19 Under South Dakota law, a TOD deed cannot include covenants or warranty of title.20
South Dakota Life Estate Deed Form
Like a TOD deed, a South Dakota life estate deed form lets a property owner keep possession of real estate for life and name another person to take the property outside probate upon the owner’s death.21 The distinction is that a life estate deed gives the beneficiary (or remainderman) a vested right to future possession. The owner cannot impair that future interest and therefore loses the right to transfer complete ownership of the property.22
Life estate deeds can—but do not have to—provide warranty of title. A life estate deed can therefore also be a quitclaim deed without covenants or a type of deed that provides a warranty.
Note: South Dakota recognizes another type of deed for transferring a deceased owner’s real estate called a personal representative’s deed. A personal representative’s deed transfers title to real estate from a deceased owner’s probate estate to an heir or devisee.23 A court-appointed personal representative prepares and records the deed as part of the estate-administration process supervised by the probate court.
Common Uses of South Dakota Quitclaim Deed without Covenants Forms
A South Dakota quitclaim deed without covenants is often appropriate when the current owner is not receiving consideration for the transfer. An owner may record a deed without consideration to transfer title to a family member as a gift or to retitle real estate the owner will continue to possess. Any of the transactions below could use a quitclaim deed without covenants:
- Adding a spouse to the title. A quitclaim deed without covenants can add the current owner’s spouse to a property’s title so that the spouses own the real estate with a right of survivorship.24
- Changing co-ownership forms. A quitclaim deed without covenants can add a co-owner or change the form of co-ownership.25
- Conveying title to a business entity. A quitclaim deed without covenants can transfer ownership to a business entity—often an entity the property owner controls.26
- Transferring property to a trust. A quitclaim deed without covenants can move property to a living trust formed as part of the owner’s estate plan.27
- Dividing marital property. Former spouses can use a quitclaim deed without covenants to transfer title to one of the ex-spouses pursuant to a divorce decree or a related property settlement agreement.28
How to Create a South Dakota Quitclaim Deed without Covenants
A South Dakota quitclaim deed without covenants must include language clearly declaring that the current owner is providing no covenants or warranty of title. The deed must also satisfy all requirements that apply to all South Dakota deeds and must accurately reflect the parties’ intended terms. For example, South Dakota law assumes a deed transfers the owner’s entire interest, but the parties can agree to transfer a lesser interest through express wording in the deed.29
South Dakota Quitclaim Deed without Covenants Requirements
South Dakota provides a statutory deed form for quitclaim deeds.30 However, a deed in the statutory form includes two implied covenants of title unless the deed expressly disclaims the covenants.31 A quitclaim deed without covenants must therefore unambiguously state that it provides no warranty of title.
Quitclaim deeds without covenants typically state that the current owner “conveys and quitclaims” the real estate to the new owner. The language disclaiming covenants of title should be similar to:
with no express or implied warranty or covenants of title and expressly disclaiming covenants and warranties implied under South Dakota law.
South Dakota General Deed Requirements
Every recorded deed affecting South Dakota real estate—including quitclaim deeds without covenants—must meet South Dakota’s statutory deed requirements. The requirements deal with formatting and identify information a deed must contain. Requirements include the following (among others):
- Format specifications. A South Dakota deed must be on letter- or legal-size paper, printed in black ink using a font no smaller than 10 points, and with a top margin of at least 3 inches on the deed’s first page.32
- Transfer information. A deed must have a title indicating the type of document, identify the parties, and set forth a legal description of the property.33
- Signatures. A deed must have the transferring owner’s original, notarized signature—along with the owner’s spouse’s signature if the owner is married and the property is a homestead.34
Selecting a South Dakota Quitclaim Deed without Covenants Form
Deed requirements are governed primarily at the state level. Individual states’ requirements can vary significantly. A South Dakota quitclaim deed without covenants must follow South Dakota’s rules and customs, and the deed’s language should accurately reflect the parties’ intended terms. A deficient deed can result in a failed transfer, problems with the property’s title, and future legal fees.
- S.D. Cod. Laws § 43-25-1.
- S.D. Cod. Laws §§ 43-25-7; 43-25-11.
- S.D. Cod. Laws § 43-25-11.
- S.D. Cod. Laws § 43-26-3.
- S.D. Cod. Laws § 43-4-13.
- Holzworth v. Roth, 101 N.W.2d 393 (SD 1960).
- S.D. Cod. Laws § 43-25-8.
- S.D. Cod. Laws § 43-25-11.
- See, e.g., Shelby v. Bowden, 16 S.D. 531 (S.D. 1903).
- See, e.g., Tex. Prop. Code § 5.023 (implying warranties in all deeds unless a deed is explicitly given with no warranty).
- S.D. Cod. Laws § 43-26-3.
- Holzworth v. Roth, 101 N.W.2d 393 (S.D. 1960).
- See 2002 SDTS § 43-30S-7-05.
- S.D. Cod. Laws § 43-25-10.
- S.D. Cod. Laws § 43-25-11.
- S.D. Cod. Laws § 43-25-8.
- S.D. Cod. Laws § 58-9-33.
- S.D. Cod. Laws § 29A-6-403.
- S.D. Cod. Laws §§ 29A-6-406; 29A-6-414; 29A-6-413.
- S.D. Cod. Laws § 29A-6-418.
- S.D. Cod. Laws §§ 43-7-1(2); 43-9-12.
- S.D. Cod. Laws §§ 43-3-18; 43-25-31.
- 2002 SDTS § 43-30S-15-03.
- See S.D. Cod. Laws § 43-2-13.
- See S.D. Cod. Laws § 43-2-11 (authorizing co-ownership by tenants in common, joint tenants, or partners).
- See, e.g., S.D. Cod. Laws § 48-7A-204, 2002 SDTS § 43-30S-4-02 (addressing real estate ownership by partnerships).
- See S.D. Cod. Laws §§ 43-4-2; 55-1-4.
- See S.D. Cod. Laws § 43-4-22(17).
- S.D. Cod. Laws § 43-4-17.
- S.D. Cod. Laws § 43-25-7.
- S.D. Cod. Laws § 43-25-11.
- S.D. Cod. Laws § 43-28-23.
- S.D. Cod. Laws §§ 7-9-7(1); 43-28-23(5).
- S.D. Cod. Laws §§ 7-9-7.4; 43-28-19; 43-28-8.