Florida Special Warranty Deed Form

What Is a Florida Special Warranty Deed Form?

A Florida special warranty deed form transfers real estate with a limited warranty of title. The person who transfers real estate using a special warranty deed (the transferor or grantor) guarantees that he or she has done nothing that would cause problems with the property’s title. The transferor makes no promises about title problems that arose before the transferor acquired the property.

What Is Warranty of Title?

A warranty of title is a guarantee that there are no undisclosed problems with a transferred property’s title.¹ The property owner who transfers the real estate gives the guarantee to the new owner when signing the deed. Warranty of title gives the new owner a legal right to sue the transferor for breach of warranty if an undisclosed title problem arises.

Title problems can reduce a property’s value and make selling more difficult. In some cases, a title issue can even result in loss of the property. Potential title problems affecting a property might include:

• An undisclosed lien or mortgage;
• An error in a prior deed;
• A dispute over a boundary or survey; or
• An adverse third-party claim caused by conflicting deeds.

A successful breach of warranty claim lets the transferee recover from the prior owner any financial loss caused by the title problem.

How Does a Florida Special Warranty Deed’s Warranty Work?

A special warranty deed is named after its limited title warranty—also called a special warranty. The warranty is special (limited) because it only applies to the period when the transferor who signs the deed owned the property. A Florida special warranty deed provides no warranty for the period before the transferor acquired the property. The word special in the name distinguishes the deed from a Florida general warranty deed, which provides a complete warranty of title.

Other Names for a Florida Special Warranty Deed Form

A deed that transfers Florida real estate with a limited warranty is always called a special warranty deed. Other states use different names for the same type of deed. The most common alternate name is limited warranty deed.²

A California deed that provides a limited warranty is called a grant deed.³ A deed with a limited warranty in Michigan is called a Michigan covenant deed.⁴ Lawyers in Alabama use the name statutory warranty deed to reflect the deed’s statutory authorization.⁵ All of these terms refer to deeds that transfer real estate with a limited warranty of title.

How Do Florida Special Warranty Deed Forms Relate to Other Forms of Deeds?

A Florida special warranty deed form provides a limited warranty of title to the person acquiring the real estate. A transferor who signs a special warranty deed warrants that nothing the transferor has done prevents the deed from transferring good title to the transferee. The warranty covers only title problems that arose while the transferor owned the property.

A Florida special warranty deed form’s limited warranty presents a middle-ground alternative to two other types of deeds that are commonly used in Florida: general warranty deeds (which give a complete warranty) and quitclaim deeds (which give no warranty).

Florida Warranty Deed Form

A Florida general warranty deed form—also called a statutory warranty deed or simply warranty deed—gives the new owner an absolute warranty of title. It guarantees that no one has done anything to prevent the transferee from receiving good title to the property.⁶ The general warranty covers everyone in the chain of title, not just the current owner who signs the deed. A Florida special warranty deed, by comparison, guarantees only that the current owner has done nothing that would impair the property’s title.

Florida Quitclaim Deed Form

A Florida quitclaim deed form gives the new owner absolutely no warranties of title. A person who acquires property by quitclaim deed assumes the risk of problems with the title. If the person who transferred the property did not legally own it, the transferee has no recourse against the transferor under the deed. A transferor who signs a quitclaim deed is not legally responsible for title problems—even if the transferor caused the problem.

Example: Broward transfers real estate to Duval using a special warranty deed. Duval learns after receiving the property from Broward that Flagler—who sold the property to Broward—had tax liabilities that resulted in a tax lien against the property. Because the tax lien arose before Broward owned the property, it is not covered by the special warranty deed’s warranty. Duval therefore has no recourse against Broward under the deed.

If Broward used a general warranty deed to convey the property to Broward, the deed’s complete warranty would have covered the tax lien that arose while Flagler owned the property. In that case, Duval could have sued Broward for breaching the warranty of title—even though Broward did not cause the title problem.

Florida Title Insurance and Special Warranty Deeds

When a seller uses a Florida special warranty deed to transfer property to a buyer, the deed’s warranty is usually supplemented by title insurance. Title insurance allows the parties to shift risk from the current owner to the insurance company. Having the title insurer carry the risk is often preferable for both the transferor and the transferee.

Title insurance lets the transferor convey the property without worrying about potential future liability caused by an unknown title issue. The transferee knows that a professional insurance company has reviewed the property’s title and is contractually bound to cover any financial damage if a title problem is later discovered.

Increased use of title insurance has made the decision about whether to use a special warranty deed or a general warranty deed less important than it once was.

Florida Special Warranty Deed Forms and Other Florida Deeds Used in Estate Planning

The name special warranty deed describes only the deed’s warranty of title. It is unrelated to when the deed transfers title to the new owner. Florida estate-planning deeds—like Florida life estate deeds and Florida lady bird deeds—are named after their probate avoidance benefits and not after the warranty of title. Life estate deeds and lady bird deeds do not transfer the property to the new owner until the current owner’s death.

Names based on a deed’s warranty and names based on the timing of the transfer are not mutually exclusive. So, more than one name may apply to the same deed. A single deed may be both a special warranty deed and a lady bird deed, for example.

Life estate deeds and lady bird deeds are two of the most common deeds for Florida estate plans. Both types of deeds separate ownership of the property into two interests. The current owner typically keeps the life estate—which gives him or her the right to own the property for life. The deed gives another person the remainder—which is the right to receive the property outside probate when the current owner dies (when the life estate ends).

The difference between a Florida life estate deed and a Florida lady bird deed is the amount of control over the property that the owner keeps during life. A lady bird deed reserves to the owner the absolute right to sell, transfer, or mortgage the property until he or she dies. An owner who records a traditional life estate deed can sell, transfer, or mortgage the property only with the remainder beneficiary’s consent.

Another type of estate-planning deed that is popular in some other states—called transfer-on-death deeds—are not recognized in Florida.

Common Uses of Florida Special Warranty Deed Forms

Florida special warranty deeds are versatile and can be used in numerous contexts. A property owner might use a special warranty deed to transfer property to:

• A trust—such as a revocable living trust—that the transferor controls or benefits from;
• A limited liability company or another business entity that the transferor owns to allow continuity of title insurance coverage;
• A purchaser of commercial or multi-family residential property;
• A new owner who purchases title insurance and is not concerned with the limited warranty of title; or
• A new owner in other circumstances where the current owner does not want to be legally responsible for title problems that arose before the current owner owned the property.

Florida special warranty deeds are also commonly used for transfers by a fiduciary—like a trustee of a trust. Special warranty deeds are the preferred option for transfers from trustees because trustees usually lack the power to provide a general warranty. Other fiduciary transfers—such as deeds from a guardian, bankruptcy trustee, or a deceased owner’s personal representative—can also use special warranty deeds. Deeds created in the foreclosure context to transfer title to the lender or to a new owner in a foreclosure sale are also often special warranty deeds.

How to Create a Florida Special Warranty Deed

A Florida special warranty deed form must include language clearly defining the deed’s limited warranty. Like other deeds, Florida special warranty deeds must satisfy Florida’s legal requirements for all deeds and must accurately reflect the parties’ intended terms.

Creating a Special Warranty Deed

A special warranty deed requires special language to ensure that the deed qualifies as a special warranty deed. This requires specific wording in the deed’s vesting clause and greater detail defining the limited warranty in the deed’s warranty clause.

A Florida special warranty deed’s vesting clause is typically based on the warranty deed form described in Florida’s real estate laws.⁷ The model language is modified to show that the deed is a special warranty deed (and not a general warranty deed). The warranty clause usually states that the warranty covers claims against the property “when the claim is by, through, or under Grantor, but not otherwise.”

Florida General Deed Requirements

A Florida special warranty deed form must also meet Florida’s recording requirements for all deeds. Florida’s deed requirements include a statement of consideration, a legal description, formatting standards, and signature and notarization rules. A deed that passes title to more than one person should identify which form of co-ownership the new owners will use.⁸

Choosing a Florida Special Warranty Deed Form

When selecting a Florida special warranty deed form, it is important to use a document designed to comply with Florida law. Failure to use precise language or satisfy all recording requirements could result in rejection of the deed, further legal costs and recording fees, or unintended legal effects.

1. See Fla. Stat. § 689.03.
2. See, e.g., Ohio Rev. Code §5302.07.
3. Cal. Civ. Code §1092.
4. Mich. Comp. Law §750.275.
5. Ala. Code § 35-4-271.
6. Fla. Stat. § 689.02.
7. See Fla. Stat. § 689.02.
8. See Fla. Stat. §§ 695.26; 689.02.