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

[Bickel, Dwight]

There is no apparent difference between the deed forms that will affect the extent of the grantor’s title that is conveyed. Both convey whatever title that was owned by the grantor.

The difference between the deeds discussed in this thread is only in the warranties that the grantor gives if that title has defects. If somebody else makes a claim of title against the grantee, from full ownership to a lien, due to a conveyance by the grantor, or attached due to the grantor’s ownership, then the historical limited warranty obligates the grantor to defend and to pay damages. But if the grantor has no ownership, whether or not the source of the defect was known to the grantor, the historical limited warranty of the special warranty deed does not obligate the grantor to defend or to pay damages to the grantee.

If your custom deed for a fiduciary acting for a decedent or trust is a “Special Warranty Deed with the historical language included,” then the deed does not include a warranty that the property was owned in fee by the decedent. That is appropriate, and when the P&SA provides that deed form as an addendum, then that deed is consistent with the agreement.

However, if the P&SA calls for Special Warranty Deed defined as the LPB 16, without the addendum providing the custom form, then, in my opinion, only the LPB 16 exact form should be used. As I wrote, I believe the warranties of LPB 16 are the same as RCW 64.04.040.
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