Warranty Deeds

Warranty Deeds

A Warranty Deed is a type of real estate Deed where the seller warrants you that the title to the real estate in question has good and marketable title without any liens or encumbrances attached to the property at the time of transfer.

Unlike a Quitclaim Deed, a Warranty Deed guarantees that the purchaser has good title.  Typically, a Warranty Deed involves the purchase of residential real estate through a title company in Illinois. A Warranty Deed will utilize the language “Convey and Warrant”.  756 ILCS 5/9, Conveyances Act.

To properly convey and warrant title, three elements are necessary:
  • That at the time of the making and delivery of such deed Grantor was the lawful owner of an indefeasible estate in fee simple, in and to the premises therein described, and had good right and full power to convey the same. 756 ILCS 5/9.
  • That the same were then free of liens and encumbrances. 765 ILCS 5/9.
  • That Grantor warrants to the grantee, his heirs and assigns, the quiet and peaceful possession of such premises, and will defend the title thereto shall be obligatory upon any grantor, his heirs and personal representatives, as fully and with like effect as if written at length in such deed. 765 ILCS 5/9.

These three requirements are the requirements in the State of Illinois for a Warranty Deed. Simply put, a grantor or grantors are the person or persons (or entity) that is selling the real estate to the grantee the buyer.  Most real estate transactions require title insurance because the buyer wants to make sure that the seller has the financial ability to guarantee good and marketable title.  There is an assumption under the State of Illinois law that a Warranty Deed explicitly is guaranteed by the State of Illinois law.

Types of Title Ownership in Illinois

What is joint tenancy with a right of survivorship?

Joint tenancy is the real estate property ownership owned by two or more people in the State of Illinois. Generally, co-owners of residential real estate will be joint tenants when they intend for the surviving person to inherit the real estate property (100 percent).  Real estate deeds which are owned by two or more persons are assumed to be titled as joint tenants.  The words “with right of survivorship” are helpful but not necessary. One of the benefits of joint tenancy is the ability to avoid real estate tile issues and probate court.

Under 735 ILCS 1005/1, Joint Tenancy Act concludes that the real estate deed “shall expressly be thereby declared to pass not in tenancy in common but in joint tenancy.”  This is the appropriate language for a Warranty Deed, which intends to have a “right of survivorship”.

What is Tenancy in Common?

Unlike Joint Tenancy, Tenancy in Common is a type of real estate ownership where there is no right of survivorship. With Tenancy in Common, each co-owner must describe who shall inherit their interest upon death. There is no right of survivorship for tenancy in common transactions. Tenancy in Common transactions typically occur when two unrelated persons own real estate together and at least one party has a child or children that they want to inherit their real estate interests upon their death. Often, tenancy in common real estate interests go through the Illinois probate process.

When a co-owners of joint tenancy real estate interest dies, a joint deceased tenancy affidavit is required to pass good title to the next party. A joint deceased tenancy affidavit is an affidavit under oath which states that one of the co-owners of real estate is deceased and the other party inherited the property via survivorship. Again, survivorship means that a person inherited the other person’s interest free and clear of any claims by their heirs or assigns.

What is Tenancy by Entirety?

Similarly, to Joint Tenancy, Tenancy by Entirety has a right of survivorship for the surviving spouse.  This means that the surviving spouse will inherit 100 percent of the real estate property upon the death of the other spouse. Unlike Joint Tenancy, Tenancy by Entirety has a unique benefit to married couples. The benefit is asset protection.  Creditors with a Judgment against one of the spouses are not able to take the assets of the remaining spouse. The only time the asset is at risk is if the creditor has a judgment against both spouses at the same time.

Jointly held ownership of real estate in Illinois has two requirements. The first major factor is the parties must be married (or legal partners). The second factor is the real estate interest conveyed must be the husband and wife’s primary home of residence or their homestead interests. Thus, the primary home of residence means that this property is considered their home. A person or persons (or entity) has only one principal place of residence or family residence.