COVENANT FOR FURTHER ASSURANCE - The Law Mind Legal Dictionary

COVENANT FOR FURTHER ASSURANCEAuthored

The Law Mind • 1189 words

Definition

A covenant for further assurance is a promise made by a grantor in a deed by which the grantor binds himself, and typically his heirs and successors, to execute any additional documents or take any further lawful steps necessary to perfect the title conveyed to the grantee. It is a future covenant — meaning it runs with the land and is breached, if at all, only when the grantee's title is actually disturbed or shown to be defective, not at the moment the deed is delivered.

In practical terms, the covenant functions as a standing obligation: if a gap, defect, or cloud on title later emerges that the grantor could remedy by signing a corrective deed, a release, a quitclaim, or similar instrument, the grantor is contractually bound to do so. The covenant does not guarantee that title is good at the time of conveyance; it guarantees that the grantor will cooperate in fixing whatever turns out to be wrong.

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Common Confusion

COVENANT FOR FURTHER ASSURANCE vs. COVENANT OF WARRANTY. These are related but distinct obligations. The covenant of warranty obligates the grantor to defend the grantee's title against lawful claims and, if defense fails, to compensate the grantee. The covenant for further assurance obligates the grantor to take affirmative steps to cure title defects before they ripen into a loss. Warranty is defensive and compensatory; further assurance is proactive and curative. In English conveyancing practice the two were treated as separate covenants. American practice frequently collapses them, and many modern deeds omit further assurance altogether, leaving the covenant of warranty to do all the work — a distinction researchers must track when reading historical deeds.

COVENANT FOR FURTHER ASSURANCE vs. PRESENT COVENANTS. Present covenants (seisin, right to convey, against encumbrances) are breached, if at all, at the instant of delivery. The covenant for further assurance is a future covenant and cannot be breached at closing — it is breached only when a demand for further action is made and refused, or when the grantor's cooperation would be required and is withheld.

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Core Elements

The covenant is generally understood to require: (1) a grantor who made the original conveyance, or that grantor's heirs or assigns; (2) a defect, gap, or cloud on title that post-dates or was latent at the time of conveyance; (3) a demand — express or reasonably implied — by the grantee for curative action; (4) a failure or refusal by the grantor to take such action; and (5) that the curative action demanded falls within the grantor's lawful power to perform. The covenant does not require the grantor to do the impossible or to cure defects arising entirely from the grantee's own conduct.

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Recognized Forms

/SUBTYPES

Further assurance covenants appear in two broad forms. Express covenants use language explicitly promising future corrective acts, often tracking a formula such as "will do, execute, or cause to be done and executed all such further acts, deeds, and things." Implied covenants for further assurance are recognized in some jurisdictions by statute, where a statutory warranty or grant deed is deemed to carry the covenant by operation of law without express language.

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Why It Matters in Research

Researchers working in historical deed records should be alert to several traps. First, the covenant for further assurance was far more common in English and early American conveyancing than in modern American practice. A deed from the eighteenth or early nineteenth century may carry an express further assurance covenant where a modern deed would not, and the presence or absence of that covenant can matter when tracing chain of title disputes.

Second, because the covenant is a future covenant, its breach runs with the land. A remote grantee — not the original covenantee — can sue on it if title is disturbed. This means researchers examining litigation over defective title should look upstream in the chain of title for a further assurance covenant, even if the parties to the lawsuit had no direct contractual relationship with each other.

Third, American jurisdictions diverged meaningfully from English practice. In England, the further assurance covenant was treated as one of four standard title covenants. American jurisdictions often consolidated the covenant of warranty and the covenant for further assurance, or omitted further assurance entirely, relying on general warranty language to accomplish the same result. State deed forms and recording statutes vary; a statutory "warranty deed" in one state may incorporate further assurance by implication while the same language in another state carries no such meaning.

Fourth, the Bouvier's entry provided in the source material treats further assurance as part of the family of covenants for title alongside quiet enjoyment, right to convey, and against encumbrances — but does not develop it independently. Researchers relying solely on Bouvier's for guidance will find the covenant addressed obliquely rather than as a standalone entry, which is itself a signal that the treatise literature (particularly English equity sources and American title insurance law developments) must supplement the historical dictionaries.

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Historical Dictionary Support

Bouvier's Law Dictionary addresses the covenant for further assurance only as a member of a cluster of title covenants — specifically the English set of four covenants for title used in deed practice — without elaborating its independent operation. The entry as preserved focuses on covenants for quiet enjoyment as the exemplar, listing further assurance alongside the right to convey and against encumbrances as companion covenants without separate treatment.

This is consistent with the historical reality that English treatise writers, including Preston on Conveyancing and Rawle on Covenants for Title (the leading American treatise on the subject), gave further assurance less attention than warranty and quiet enjoyment because it was rarely litigated in isolation. The covenant's function was largely absorbed in practice by warranty clauses, and cases turning solely on further assurance are comparatively rare in the American reports. Historical sources thus underrepresent its theoretical importance relative to its practical role in completing conveyancing transactions.

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Jurisdictional Note

The covenant for further assurance is more prominent in jurisdictions that follow English-derived conveyancing traditions and in states where statutory deed forms enumerate it by name. In many American states, it has been effectively superseded by the general warranty deed's implied obligations or by title insurance requirements that render post-closing curative demands less common. Researchers working in Louisiana, which follows a civil law tradition, should consult obligations de garantie rather than common law covenant doctrine.

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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 FOR FURTHER ASSURANCEmain

Bouvier's Law Dictionary • 1928

Covenants for quiet enjoyment. See Cov- ENANT FOR QUIET ENJOΥΜΕΝΤ. Covenants for title are those covenants in a deed conveying land which are inserted for the purpose of securing to the grantee and covenantee the benefit of the title which the grantor and covenantor pro- fesses to convey. Those in common use in England are four in number of right to convey, for quiet en- joyment, against incumbrances, and for fur- ther assurance-and are held to run with the land; the covenant for seisin has not been generally in use in modern convey- ances in England; Rawle, Cov. § 24. In the United States there is, in addition, a cove- nant of warranty, which is more commonly used than any of the others. In the United States what are often called 'full cove- nants' are the covenants for seisin, for right to convey, against incumbrances, for quiet enjoyment, sometimes for further assur- ance, and, almost always, of warranty- this last often taking the place of the cove- nant for quiet enjoyment;" Rawle, Cov. S 27. The covenants of seisin, for right to convey, and against incumbrances, are gen- erally held to be in præsenti; if broken at all, they are broken as soon as made; Rawle, Cov. 318; 4 Kent 471; 6 Cush. 128; 8 Washb. R.P. 478; see Mitch. R. P. 448; 36 Me. 170; and the various titles below for a fuller state- ment of the law relative to the different covenants for title. Implied covenants or covenants in law are those which arise by intendment and con- struction of law from the use of certain words having a known legal operation in the creation of an estate, so that after they have had their primary operation in the creation of the estate, the law gives them a secondary force, by implying an agree- ment on the part of the grantor to protect and preserve the estate so by these words already created; 1 C. B. 429; Bacon, Abr. Covenant, B; Rawle, Cov. § 270, n. In Co. Litt. 139 b, it is said that " of covenants there be two kinds: a covenant personal and a covenant real; a covenant in deed and a covenant in law." In a conveyance of lands in fee, the words "grant, bargain, and sell," imply certain covenants; see 4 Kent 478; and the word "give" implies a covenant of warranty during the life of the feoffor; 10 Cush. 134; 2 Caines 193; 9 Ν. H. 222; 7 Ohio 394; (but this covenant and that implied from the word "grant" are abolished in England by 8 & 9 Vict. c. 106, § 14); and in a lease the use of the words "grant and demise; " Co. Litt. 384 4 Wend. 502; "grant;" Freem. 367; Cro. Eliz. 214; 1 P. & D. 360: "demise; " 4 Co. 80; 10 Mod. 162 : 9 N. H. 222; 15 Ν. Υ. 327; "demisement; " 1 Show. 79; 1 Salk. 187; raise an implied covenant on the part of the lessor, as do "yielding and paying; " 9 Vt. 151; on the part of the lessee. In regard to the covenants arising to each grantee by implication on sale of an estate with condi- tions, in parcels to several grantees, see 23 Barb. 153. Covenants in deed. Covenants in gross. with the land. in parcels Express covenants. Such as do not run Covenants in law. Implied covenants. Illegal covenants are those which are ex- pressly or impliedly forbidden by law. Cov- enants are absolutely void when entered into in violation of the express provisions of statutes; 5 H. & J. 193; 5 Ν. Η. 96; 4 8. & R. 159; 4 Halst. 252; or if they are of an immoral nature; 3 Burr. 1568; 1 Β. & P. 340; 8 T. B. Monr. 35; against public policy: 4 Mass. 370; 7 Me. 118; 5 Halst. 87; 3 Day 145; 5 W. & S. 315; 6 Miss. 769; 2 McLean 464; 4 Wash. C. C. 297; 11 Wheat. 258; in general restraint of trade; 21 Wend. 166; 7 Cow. 307; 6 Pick. 206; or fraudu- lent as between the parties; 4 S. & R. 488; 5 Mass. 16; or as to third persons; 3 Day, 450; 14 8. & R. 214; 3 Caines 213; 2 Johns. 286; 15 Pick. 49. Independent covenants are those the ne- cessity of whose performance is determined entirely by the requirements of the cove- nant itself, without regard to other cove- nants between the parties relative to the same subject-matter or transactions or series of transactions. Covenants are generally construed to be independent; Platt, Cov. 71; 2 Johns. 145; 10 id. 204; 21 Pick. 438; 8 Bingh. N. 8. 855; unless the undertaking on one side is in terms & condition to the stipulation of the other, and then only consistently with the intention of the parties; 3 Maule & S. 308; 10 East 295, 530; or unless dependency re- sults from the nature of the acts to be done, and the order in which they must neces- sarily precede and follow each other in the progress of performance; Willes 496; or unless the non-performance on one side goes to the entire substance of the contract, and to the whole consideration; 1 Seld. 247. If once independent, they remain so; 19 Barb. 416. Inherent covenants are those which relate directly to the land itself, or matter grant- ed. Shepp. Touchst. 161. Distinguished from collateral covenants. If real, they run with the land; Platt, Cov. 66. Intransitive covenants are those the duty of performing which is limited to the

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