COVENANT AGAINST INCUMBRANCES - The Law Mind Legal Dictionary

COVENANT AGAINST INCUMBRANCESAuthored

The Law Mind • 1060 words

Definition

A covenant against incumbrances is a formal promise made by a grantor in a deed that the property being conveyed is free from all liens, charges, easements, restrictions, mortgages, and other encumbrances that would diminish its value or burden the grantee's enjoyment of title — except those specifically disclosed and excepted in the deed. It is one of the six traditional covenants of title and is classified as a present covenant, meaning it speaks to the condition of title at the moment of conveyance, not to future events.

If an undisclosed encumbrance exists at the time of delivery, the covenant is breached at that instant, regardless of whether the grantee has yet suffered any actual interference with possession. The grantee's remedy is generally damages measured by the cost to remove the encumbrance or, where removal is impossible, by the diminution in value it causes.

An encumbrance for purposes of this covenant includes:
- Monetary liens (mortgages, judgment liens, tax liens, mechanics' liens)
- Non-possessory use restrictions (easements, profits à prendre, restrictive covenants running with the land)
- Charges or servitudes imposed by prior owners or operation of law

Visible, apparent easements — such as a paved road openly crossing the land — are sometimes treated differently by courts, with some jurisdictions holding that obvious physical encumbrances are not breached by this covenant because the grantee took with constructive or actual notice.

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Common Confusion

COVENANT AGAINST INCUMBRANCES vs. COVENANT OF WARRANTY: These are frequently conflated but operate differently in time and scope. The covenant against incumbrances is a present covenant — it is breached, if at all, at the moment of conveyance, and the statute of limitations begins to run immediately. The covenant of warranty is a future covenant — it is breached only when the grantee is actually or constructively evicted by a paramount claimant. A grantee who discovers an old mortgage on property received years ago may find the covenant against incumbrances time-barred while a warranty claim remains live, or vice versa. Researchers must identify which covenant is at issue before assessing limitations.

INCUMBRANCES vs. ENCUMBRANCES: Both spellings appear throughout legal literature. "Incumbrances" was the dominant spelling in 19th-century deeds and legal dictionaries; "encumbrances" is now standard in most American jurisdictions and modern practice. The terms are legally identical. Historical deed research will routinely encounter the older spelling; do not treat the variant as a distinct legal concept.

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Why It Matters in Research

The present-covenant classification is the most consequential research trap with this term. Because breach occurs at delivery, not at discovery, statutes of limitations in most jurisdictions begin running from the date of the deed — not from when the grantee learns of the encumbrance. A researcher analyzing a title dispute must pin down both the date of the conveyance and the applicable limitations period before the covenant against incumbrances becomes useful as a remedy theory.

Historical deed forms, particularly pre-20th-century warranty deeds, often bundled multiple covenants of title into a single recital using archaic language ("to warrant and defend, free and clear of all incumbrances"). Researchers working with historical deeds must parse whether the instrument actually contains a discrete covenant against incumbrances or whether it is absorbed into a general warranty clause — courts have treated these differently.

Jurisdictional variation in what counts as an encumbrance matters heavily. Zoning restrictions and public regulatory burdens are generally not treated as encumbrances for covenant purposes in most American jurisdictions, because they arise from general law rather than from private claims. Researchers should not assume that a violation of a zoning ordinance discovered post-closing will support a breach claim under this covenant.

In the Law Mind corpus, this term connects directly to the broader architecture of deed covenants of title. Understanding the covenant against incumbrances requires situating it within the present/future covenant distinction, which is fully developed in realestate_21. Researchers working on title insurance questions will find the covenant against incumbrances historically significant as the private-law precursor to the encumbrance exclusions and exceptions now standard in title commitment schedules.

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Historical Dictionary Support

Bouvier's Law Dictionary treats the covenant against incumbrances within its broader discussion of deed covenants, characterizing it as a present, direct covenant going to the condition of title at conveyance — distinct from auxiliary or collateral covenants, which Bouvier describes as supporting or incidental to a principal covenant rather than constituting the main subject of the parties' agreement. Bouvier's taxonomy is useful for understanding why courts have held that breach of this covenant is immediate and self-executing: it is not auxiliary to anything, but is itself a principal covenant about the state of the estate conveyed.

Older legal dictionary treatments uniformly use the spelling "incumbrances" and often group this covenant with seisin and right-to-convey covenants as the trio of present assurances in a full warranty deed. What historical sources tend to underemphasize is the limitations-period consequence of the present-covenant classification — a doctrinal point that became increasingly litigated as chains of title lengthened through the 20th century. Modern research on this topic will find historical dictionary entries necessary but insufficient; treatise and case law sources must supplement them.

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Jurisdictional Note

Most American jurisdictions follow the present-covenant rule, but a minority have adopted discovery rules that toll the limitations period until the grantee knew or reasonably should have known of the encumbrance. Statutory deed forms in some states (including those adopting the Uniform Simplification of Land Transfers Act provisions) incorporate covenants against encumbrances by implication from standard deed language, without requiring explicit recital.

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Encyclopedia Cross-Reference

Deed Covenants of Title — Present Covenants (Seisin, Right to Convey, Against Encumbrances) and Future Covenants (Warranty, Quiet Enjoyment, Further Assurances), The Law Mind Real Estate Transactions & Construction Encyclopedia (realestate_21)

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COVENANT AGAINST INCUMBRANCESmain

Bouvier's Law Dictionary • 1928

Alternative covenants are disjunctive covenants. Auxiliary covenants are those which do not relate directly to the principal matter of contract between the parties, but to something connected with it. Those the scope of whose operations is in aid or sup- port of the principal covenant. If the principal covenant is void, the auxiliary is discharged; Anstr. 256; Prec. Chanc. 475. Collateral covenants are those which are entered into in connection with the grant of something, but which do not relate im- mediately to the thing granted: as, to pay a sum of money in gross, that the lessor shall distrain for rent on some other land than that which is demised, to build a house on the land of some third person, or the like. Platt, Cov. 69; Shepp. Touchst. 161; 4 Burr. 2439; 3 Term 393; 2 J. B. Moore 164; 5 B. & Ald. 7; 2 Wils. 27; 1 Ves. 56. Concurrent covenants are those which are to be performed at the same time. When one party is ready and offers to perform his part, and the other refuses or neglects to perform his, he who is ready and offers has fulfilled his engagement, and may main- tain an action for the default of the other, though it is not certain that either is obliged to do the first act; Platt, Cov. 71; 2 Selw. N. P. 443; Dougl. 698; 18 E. L. & Eq. 81; 4 Wash. C. C. 714; 16 Mo. 450. Declaratory covenants are those which serve to limit or direct uses. 1 Sid. 27; 1 Hob. 224. Dependent covenants are those in which the obligation to perform one is made to depend upon the performance of the other. Covenants may be so connected that the right to insist upon the performance of one of them depends upon a prior performance on the part of the party seeking enforce- ment. Platt, Cov. 71: 2 Selw. N. P. 443; Steph. N. P. 1071; 1 C. B. N. S. 646; 6 Cow. 296; 2 Johns. 209: 2 W. & S. 227; 8 S. & R. 268; 4 Conn. 3; 24 id. 624; 11 Vt. 549; 17 Me. 232; 3 Ark. 581; 1 Blackf. 175; 6 Ala. 60; 3 Ala. N. S. 330. Τo ascertain whether covenants are dependent or not, the inten- tion of the parties is to be sought for and regarded, rather than the order or time in which the acts are to be done, or the struc- ture of the instrument, or the arrangement of the covenant; 2 Pars. Contr. 645; 1 Wms. Saund. 320, n.: 7 Term 130; 5 Β. & P. 223; 36 E. L. & Eq. 358; 4 Wash. С. С. 714; 4 Rawle 26; 2 W. & S. 227; 2 Johns. 145; 5 N. Y. 247; 1 Root 170; 4 Rand. 352. See note to Cutter v. Powell, Smith Lead. Cas. Disjunctive covenants. Those which are for the performance of one or more of several things at the election of the cove- nantor or covenantee, as the case may be. Platt, Cov. 21; 1 Duer N. Y. 209. Executory covenants are those whose per- formance is to be future. Shepp. Touchst. 161. Express covenants are those which are created by the express words of the parties to the deed declaratory of their intention; Platt, Cov. 25. The formal word covenant is not indispensably requisite for the crea- tion of an express covenant; 2 Mod. 268; 5 Q. B. 683; 8 J. B. Moore 546; 12 East 182, n.; 1 Bibb 379; 3 Johns. 44; 4 Conn. 508; 1 Harr. Del. 233. The words "I oblige," "agree," 1 Ves. 516; 2 Mod. 266, "I bind myself," Hardr. 178; 3 Leon. 119, have been held to be words of covenant, as are the words of a bond ; 1 Ch. Cas. 194. Any words showing the intent of the parties to do or not to do a certain thing, raise an express covenant; 13 N. H. 518. But words import- ing merely an order or direction that other persons should pay a sum of money, are not a covenant; 6J. B. Moore 202, n. (a). See Covenants for further assurance.

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