In feudal England, real property possession was conveyed through a symbolic act, termed ‘livery of seisin’ (or seizin). Livery of seisin roughly translates to the delivery of possession of land. It could be a lump of soil, a tree branch, or even a fixture of the house. When the grantor passed this symbolic item to the transferee, possession was conveyed.
Although the Illinois Conveyances Act recognized livery of seizin, it provides that this symbolic act in not necessary (765 ILCS 5/1). Instead of passing lumps of soil or tree branches, we currently rely on deeds of conveyance to transfer interest in real property. In Illinois property is routinely transferred by warranty deed or via quit claim deed.
A Warranty Deed transfers title with the grantor’s warranting that title is free of any adverse claims. This includes adverse claims that might have occurred prior to the grantor’s period of ownership.
By conveying via warranty deed, the grantor is basically warranting: (1) that the grantor is the lawful owner of the estate in fee simple and has the right to convey the property to the grantee; (2) that there are no encumbrances (such as a mortgage, lien, lease, etc.); and (3) that there aren’t any adverse claims against the land and title, and if there are then the grantor will defend against those claims. These warranties become part of the conveyance regardless of whether they are expressly stated in the deed. The exact language of the grantor warranties can be found in 765 ILCS 5/9.
A Special Warranty Deed is a deed that limits the warranties. It can be limited to claims that might have occurred during the grantors period of ownership or claims that could have occurred by the grantor. The deed will need to include operative language to the effective limitation(s). Special Warranty Deeds are more common when the grantor acquired the property through a tax sale, foreclosure, or other debt related transfer. In those cases the grantor may limit the warranties to claims by, through or under the grantor. Unlike Warranty Deeds, Quit Claim Deeds provide no warranties as to title, and the grantee takes title subject to any adverse claims.
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