[WSBARP] Special Warranty Deeds vs. Bargain & Sale Deeds

[Bickel, Dwight]

I believe there used to be an intended difference between a Special Warranty Deed and a Bargain and Sale deed. The statutory Bargain and Sale deed warranties include a covenant that the Grantor is the owner of the land, but the historical limited warranty used upon Special Warranty Deeds does not include a covenant of ownership. However, I believe the current form entitled Special Warranty Deed will be interpreted to provide all the statutory warranties of RCW 64.04.040.

Special Warranty Deed forms were in common use for many decades before the Limited Practice Board [LPB] began promulgating deed forms for Limited Practice Officers. Those deed forms consistently included the following limited warranty language that is referred to herein as “the historical limited warranty:”

The Grantor for [himself/herself/itself/themselves] and for [his/her/its/their] successors in interest [does/do] by these presents expressly limit the covenants of the deed to those herein expressed, and [exclude/excludes] all covenants arising or to arise by statutory or other implication, and [does/do] hereby covenant that against all persons whomsoever lawfully claiming or to claim by, through or under said [Grantor/Grantors] and not otherwise, [he/she/it/they] will forever warrant and defend the said described real estate.

Initially, the Board did not promulgate a form entitled Special Warranty Deed. Between 1983 and 2009, the LPB form entitled Bargain and Sale Deed included the historical limited warranty that had previously been in common use entitled Special Warranty Deed. On April 29, 2009, the Board removed that historical limited warranty, ensuring the Bargain and Sale Deed would be interpreted pursuant to RCW 64.04.040.

On December 15, 2009, the Limited Practice Board first promulgated a “Special Warranty Deed” [LPB 16-09]. However, it chose not to include the historical limited warranty language on the form. The Board’s announcement of the Special Warranty Deed as an LPB form stated that LPOs who are responding to inquiries about the warranties “…should state that the State Supreme Court set forth the warranties in the Central Life Assurance case…” [Central Life Assurance Soc. v. Immpelmans, 13 Wn.2d 632].

Statutory forms may omit all warranty language because there is a statute that provides the warranty. The LPB 16 Special Warranty Deed does not reference that case and it does not provide the historical limited warranty. How can we be sure what the parties who now designate LPB 16 in their purchase and sale agreements intend for the seller to warrant?

Will a 2017 court decision interpret the warranties of LPB 16 the same as the 1942 historical limited Special Warranty Deed? The LPB 16 can be easily distinguished from the Special Warranty Deed in that case because there is no limited warranty on the LPB 16. What if a grantor and grantee both testify they were not familiar with the historical limited warranty or that 1942 case? Is it possible that the use of the word "warranty" in the title, based on testimony of both parties could support a judicial interpretation that LPB 16 provides the warranties of RCW 64.04.030 as a full warranty deed? Or, maybe the parties intended the grantor to provide no warranties, the same as a quitclaim.

I believe a strong argument can be made under RCW 64.04.040 that the use of “bargains, sells and conveys” in the LPB 16, without the historical limited warranty language, makes the LPB 16 provide all the Bargain and Sale warranties in RCW 64.04.040.

“…any deed that does not state a warranty, but substantially includes that the Grantor “bargains, sells and conveys,” without limiting its warranties, automatically includes each of the following Grantor warranties:…”

When different lawyers can disagree about the warranties that are given, there is an ambiguity that should be a concern to the parties.
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