Express Covenants

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Deeds to residential property often contain express covenants. These are promises that are explicitly stated in a deed (or other contract, such as a purchase and sale agreement or a rental agreement), rather than implied. Express covenants can be affirmative or negative. An affirmative covenant is a promise by the seller to take a particular action, while a negative covenant is a promise to refrain from taking a particular action. If you are buying a home in Boston or a nearby city, a real estate attorney at Pulgini & Norton can help you negotiate express covenants and other issues associated what may be one of the biggest financial transactions of your life.

Express Covenants

The three different types of real estate deeds (release deeds, warranty deeds, and quitclaim deeds) are distinguished in part by the seller's covenants in connection with them. They offer varying degrees of protection. The deed may indicate the type of covenants by stating "with warranty covenants." A quitclaim deed does not provide any covenants or assurances to the grantee.

There are six specific covenants that may be found in deeds: the covenant of seisin (ownership), the covenant of right to convey, the covenant against encumbrances, the covenant of quiet enjoyment, the covenant of general warranty, and the covenant of further assurances. The first three of these covenants can only be breached at the time the deed is delivered.

The statute of limitations for a breach of the first three covenants is six years in Massachusetts, unless a document is signed under seal. The seal increases the statute of limitations to 20 years. If, for example, there is a covenant against encumbrances, and actually there is an easement on the property that was not disclosed, this would be considered a breach of the covenant against encumbrances. If the deed includes this covenant, you can bring a lawsuit within six years of the date the deed was delivered, unless the deed was signed under seal.

The latter three covenants are future covenants. With regard to the covenant of further assurances, the grantor agrees to do whatever is necessary to remove a problem at his or her own expense, and if a problem cannot be remedied, damages will apply. The damages can be the diminution in value as a result of a breach, but they cannot be more than the consideration received by the seller or what was paid by the buyer.

Any express covenants included in the deed cannot be changed based on evidence that lies outside the deed. For example, there is no express covenant if the seller verbally promises that nobody has an easement on the property but does not place that language in the deed.

Some covenants "run with the land." To determine whether a covenant runs with the land, the court will look at factors including the intent of the grantor based on the express words, whether the covenant "touches and concerns" the land, and privity. Covenants are considered to "touch and concern" the land when they affect the characteristic or nature of the land, they are a use restriction, or they affect the value of the land.

Explore Your Options with a Boston Attorney during a Property Transaction

When negotiating express covenants in connection with your purchase of a Boston home, it can be helpful to enlist a skilled property transactions lawyer. At Pulgini & Norton, we also represent clients with regard to real estate in Hyde Park, Andover, New Bedford, and other Massachusetts cities. Call us at 781-843-2200 or contact us via our online form for a consultation.