[WSBARP] In Property Dispute what controls

[Dwight Bickel]

That situation occurs frequently to every escrow officer. I've seen lawyers representing the Estate [or its PR] escalate to cancellation of the transaction. "We won't give a warranty deed." But the PR signed a P&SA promising to do that. The escrow agent prepared a SWD and now the PR refuses to sign.

So, how big is the consequence?  Well, let's look at the risk. What are those promises and the consequences for breach. Usually the PR has a pretty solid opinion that the decedent didn't sign an unrecorded conveyance for some mortgage, easement, lease, or even deed. Usually the PR has known the decedent and there is very little likelihood that there is a recent encroachment or boundary dispute that has erupted. Usually the decedent obtained title insurance that would protect the Estate against warranties of title defects prior to the decedent's purchase.

But if a warranty claim was made, it is against the estate. And probably after that probate is closed. There certainly is no action against the PR for title warranty liability. If there was a post-closing title dispute, where the purchaser-grantee was covered, the new policy would cover that grantee's loss and perhaps pursue the Estate, as grantor, under policy subrogation rights. But that is an equitable case and the PR will also rely upon the commitment if Transamerica Title Ins. Co. v. Johnson, 103 Wn.2d 409 (1985) applies to the facts underlying the new title claim.

But now look at the risk of breach of the P&SA. That contract requires a SWD and the Estate is certainly liable for loss to the purchaser upon default. Doe the Estate have a right to refuse a SWD? In my opinion, no. Does the Estate and its PR have some argument for reformation of the terms of the P&SA based upon mutual mistake? [Both PR as Seller and the Purchaser intended a PR deed.] Maybe. That litigation will be expensive and the loser will pay attorney's fees.

Maybe just sign the SWD.

This is not just theoretical. Last week I signed a P&SA for sale of my mother's house, as a successor Trustee after her passing. The selling broker used a standard form that called for a SWD. I could have declined the offer and changed it to a Quitclaim Deed. But instead, I just accepted the offer.


Dwight A. Bickel

Real Property Title Advisor

Washington Title Professional

Dwight at dwightbickel.com<mailto:Dwight at dwightbickel.com>

http://dwightbickel.com

206-484-1976

________________________________
From: wsbarp-bounces at lists.wsbarppt.com <wsbarp-bounces at lists.wsbarppt.com> on behalf of Brent Williams-Ruth <brent at williams-ruthlaw.com>
Sent: Monday, August 24, 2026 9:51 AM
To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com>
Subject: [WSBARP] In Property Dispute what controls

Greetings My Real Property Colleagues -

I have a probate where the Executor and their real estate agent did not loop me in prior to closing on a home sale through probate. Things are not as I would have done them - but before making a mountain out of nothing, I am hoping there is a simple answer to this question.

If there is a dispute over the sale is there a priority over which document controls - the Deed or the Purchase and Sale Agreement?

Thank you!
Brent


Brent Williams-Ruth (pronouns: he/him)
Attorney-At-Law

Law Offices of Brent Williams-Ruth, a division of BWR Consulting, PLLC

Physical Address: 500 S 336th Street, Suite 214; Federal Way, WA 98003

Mailing Address: PO BOX 3319; Federal Way, WA 98063

Office/Scheduling Phone: (253) 285-7751

For All Meetings & Scheduling: info at williams-ruthlaw.com<mailto:info at williams-ruthlaw.com>

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