TITLE TALK: What is the difference between express and implied warranties?
A deed – the instrument that conveys an interest in property – typically contains both express and implied warranties. So, what’s the difference?
Implied warranties stem from Section 5.023 of the Texas Property Code which states that unless the conveyance expressly provides otherwise, the use of “grant” or convey” in a conveyance of [an interest in property] implies only that (1) the grantor (seller) promises the grantee (buyer) that he, the seller, has not conveyed that interest in the property to anyone else; and, (2) that at the time of the conveyance, the property is free from encumbrances. These warranties are owed to the immediate buyer; thus, in the event of a breach, only the immediate buyer may bring a cause of action against the seller.
Express warranties, on the other hand, are specifically stated by the grantor (seller) in the deed. Although similar to implied warranties, express warranties subject the seller to greater liability and afford the grantee (buyer), and subsequent grantees, greater protection and covers every potential defect in the title. Thus, in the event this warranty is breached, subsequent grantees may bring a cause of action against the original seller.