Two Automatic Promises
The law builds two implied covenants into any deed that uses the word "grant" or "convey" to transfer a fee simple estate. These promises protect the person receiving real estate, even if the deed does not spell them out. They are implied unless restrained by express terms in the deed.
If the word "grant" or the word "convey" is used in a conveyance by which an estate of inheritance or fee simple is to be passed, the following covenants and none other, on the part of the grantor for himself and his heirs, to the grantee and his heirs and assigns, are implied unless restrained by express terms contained in the conveyance: 1. That previous to the time of execution of the conveyance the grantor has not conveyed the same estate or any right, title or interest therein, to any person other than the grantee. 2. That the estate is at the time of execution of the conveyance free from encumbrances.
A.R.S. § 33-435(A)The first covenant means the grantor promises they have not already transferred the same property or any interest therein to any person other than the grantee. The second means the conveyance is free from encumbrances, including liens, taxes, and assessments, at the time of execution of the conveyance.
What Counts as an Encumbrance
The statute defines "encumbrances" broadly. It includes taxes, assessments, and all liens on real estate. If a property has an unpaid tax lien or a recorded judgment, the grantor has technically breached the implied covenant. The grantee can sue on it as though it were written into the deed.
As used in this section, the term "encumbrances" includes taxes, assessments and all liens on real property.
A.R.S. § 33-435(B)These implied covenants can be overridden by express language in the deed. A quitclaim deed, for example, typically uses different language specifically to avoid triggering these implied promises. When transferring property as part of an estate plan, whether into a trust, to a beneficiary, or between family members, understanding what promises attach to the deed language is an important detail that affects everyone's rights down the line.