What Is a West Virginia Special Warranty Deed Form?
Under West Virginia law, a deed is a signed legal document that creates or transfers an ownership interest in real estate.1 A West Virginia special warranty deed is a specific type of deed for transferring property with limited warranty of title. A property owner who signs a special warranty deed partially guarantees a good title. The guarantee, however, is incomplete and does not cover every issue that could affect the property’s title.
What Is Warranty of Title?
Warranty of title is a guarantee from a property owner transferring title to a new owner. The guarantee consists of a set of promises—called covenants of title—built into a deed. A West Virginia deed with complete warranty of title includes the current owner’s promises that:
- The current owner actually holds good title to the property.2
- The current owner has a legal right to transfer the property.3
- The new owner will enjoy unlimited ownership and possession of the property.4
- There are no liens, mortgages, or other problems clouding the property’s title that have not been revealed.5
- The current owner will defend the transferred property’s title against other ownership claims and cover any costs the new owner would pay due to problems with the title.6
How Does Warranty of Title Protect the New Owner?
Warranty of title protects the new owner against title defects—issues that reduce the value of real estate or make it harder to sell. Title defects covered by a warranty could include:
- Mistakes in an earlier deed or estate;
- Unknown mortgages or liens (including tax liens);
- An earlier recorded deed transferring the same real estate; or
- A dispute over the property’s boundaries.
If a title defect emerges, the former owner who provided warranty of title is responsible for fixing the problem. That could mean paying for a civil case to clear the title, paying off an unpaid lien, or paying back the new owner for lost value caused by the title defect. The new owner can sue the former owner for breach of warranty if he or he fails to solve a problem caused by a title defect.7
Why Is a West Virginia Special Warranty Deed’s Warranty Limited?
A special warranty deed’s warranty of title is limited because it does not extend to the property’s entire ownership history—called chain of title. The current owner instead guarantees that nothing occurred to cause a title defect while he or she owned the property.8 In other words, the current owner did nothing—and did not permit anyone else to do anything—to cause a title defect.9
A title defect that arose while the current owner held title is the current owner’s legal responsibility. A title defect that arose earlier in the property’s history is outside the scope of a special warranty. A title defect outside the warranty is the new owner’s responsibility.
Other Names for a West Virginia Special Warranty Deed Form
There are several different names for deeds that provide limited warranty of title. West Virginia prefers the term special warranty deed. A property owner who signs a special warranty deed in favor of a new owner specially warrants the property’s title.10
Several states use a similar term: limited warranty deed.11 Special warranty deeds and limited warranty deeds are basically the same—though states sometimes differ in exactly how a limited warranty works.
Other names used in just one or two states for the same type of deed include:
- Grant deed;
- Covenant deed; and
- Grant, bargain, and sale deed.12
How Do West Virginia Special Warranty Deed Forms Relate to Other Forms of Deeds?
A West Virginia special warranty deed splits the risk of title defects. The current owner and the new owner both take on some risk of unknown title defects—depending on when a specific defect arose. Two other deed forms West Virginia recognizes place all the risk on one party or the other.
West Virginia General Warranty Deed Form
A West Virginia general warranty deed form keeps all title-defect risk with the current owner. General warranty deeds—or just warranty deeds—transfer real estate with general warranty of title.13 An owner who generally warrants a property guarantees a valid, defect-free title. A general warranty covers all title defects not specifically left out of the warranty—no matter when a defect arose.
West Virginia Quitclaim Deed Form
A West Virginia quitclaim deed form, on the other hand, places all title-defect risk on the new owner. A quitclaim deed provides no warranty of title.14 The current owner transfers whatever property rights he or she can legally transfer (if any) and makes no promises that the property rights are valid or defect-free.
West Virginia Title Insurance and Special Warranty Deeds
Any deed exposes at least one person to financial risk from unknown title defects. Title insurance lets either party to a deed—or an interested third party such as a lender—lessen or remove that risk by passing it to an insurance company. A title insurer charges a one-time payment at closing in exchange for the insurer’s promise to cover financial loss caused by problems with the property’s title.15
West Virginia Special Warranty Deed Forms and Other West Virginia Deeds Used in Estate Planning
The extent of warranty of title the current owner provides is what separates general warranty deeds, special warranty deeds, and quitclaim deeds. West Virginia accepts other deed forms defined by the settings in which they are used or the purposes they serve.
West Virginia life estate deeds and transfer-on-death deeds, for example, are useful in estate planning. Both deeds keep real estate out of probate by arranging an automatic transfer of ownership to a named beneficiary when the current owner dies. Their main difference is that a life estate deed gives the beneficiary a future interest that has legal force now, so it limits the current owner’s right to sell the property during life.16 A property owner who records a transfer-on-death deed (or TOD deed) keeps all rights—including the right to sell the property—until the owner’s death.17
Common Uses of West Virginia Special Warranty Deed Forms
West Virginia special warranty deeds typically transfer real estate that is purchased, or transferred for consideration—especially commercial and multi-unit properties. Business entities selling real estate usually prefer special warranty deeds over general warranty deeds. Transfers of mineral interests sometimes include special warranties, too.
Fiduciaries often prefer special warranty deeds when signing deeds that transfer property on a represented party’s behalf. A special warranty allows the fiduciary to avoid guaranteeing matters he or she has limited knowledge about. A fiduciary signing a West Virginia special warranty deed could be:
- A trustee signing a deed from a trust;18
- A corporation’s officer or LLC member signing a deed for the business entity;19
- An agent acting under power of attorney signing a deed for the owner;20 or
- A personal representative signing a deed for an estate.21
How to Create a West Virginia Special Warranty Deed
West Virginia’s real estate laws include a simple statutory conveyance form.22 However, the statutory form alone is not enough to create a valid deed and does not mention warranty of title. A West Virginia special warranty deed must meet all requirements for a valid deed and show that the current owner provides a warranty with a limited scope.
West Virginia deeds typically say that the current owner intends to create a special warranty deed by including language very close to one or more of the following:
- The owner transfers the real estate with special warranty.
- The owner will warrant specially the real estate.
- The owner warrants the real estate’s title against all acts of the grantor, and all persons claiming by, through, or under the grantor, and no other.
West Virginia law also lets the parties to a deed fine-tune the deed to their agreed terms.24 This might mean:
- Limiting or extending the warranty’s scope;
- Excluding certain conditions from the warranty;
- Limiting the property rights the deed transfers; or
- Adding more covenants.25
Property laws can have meaningful differences from one state to another. A special warranty deed form designed to fit another state’s laws is unlikely to meet all West Virginia requirements. A deed transferring West Virginia real estate must follow West Virginia law and be the right deed form to achieve the parties’ goals.
- W.Va. Code § 36-1-1.
- W.Va. Code § 36-4-16.
- W.Va. Code § 36-4-4.
- W.Va. Code § 36-4-5.
- W.Va. Code § 36-4-6.
- W.Va. Code § 36-4-2.
- W.Va. Code § 36-3-2.
- W.Va. Code § 36-4-3.
- W.Va. Code § 36-4-7.
- W.Va. Code § 36-4-3.
- See, e.g., Ohio Rev. Code § 5302.07; Finnern v. Bruner, 92 N.W.2d 785 (Neb. 1958).
- See, e.g., Cal. Civ. Code § 1092; Mich. Comp. Law § 750.275 (prohibiting the words warranty deed if a deed provides less than complete warranty of title). Nev. Rev. Stat. § 111.170.
- W.Va. Code § 36-4-2.
- W.Va. Code § 36-3-7.
- W.Va. Code § 33-1-10(f)(4).
- W.Va. Code § 36-1-9.
- W.Va. Code § 36-12-12(1).
- W.Va. Code § 44D-8-815; W.Va. Code § 44-5A-3(b).
- W.Va. Code §§ 31D-3-302(5) and (7).
- W.Va. Code § 39B-2-104.
- W.Va. Code § 44-8-1.
- W.Va. Code § 36-3-5.
- See, e.g., W.Va. Code § 59-1-10; W.Va. Code § 36-3-5; W.Va. Code § 39-1-2.
- W.Va. Code § 36-3-4; W.Va. Code § 36-4-17.
- See, e.g., W.Va. Code § 36-4-4 – W.Va. Code § 36-4-7.