Colorado § 38-30-113 - Deeds - short form - acknowledgment - effect.

§ 38-30-113. Deeds - short form - acknowledgment - effect.

(1) (a) A deed for the conveyance of real property in substantially the following form and that includes the words "and warrant(s) the title to the same", or substantially similar language, is a warranty deed with covenants of warranty:

...................., whose street address is ........................, City or Town of ........................, County of ........................ and State of ........................, for the consideration of .............. dollars, in hand paid, hereby sell(s) and convey(s) to .................... whose street address is ...................., City or Town of ...................., County of .................... and State of ...................., the following real property in the County of ........................ and State of Colorado, to wit: ........................ with all its appurtenances and warrant(s) the title to the same, subject to ......................... .

Signed this .................... day of ...................., 20..... .

...................................

(b) A deed for the conveyance of real property in substantially the following form and that includes the words "and warrant(s) the title to the same against all persons claiming under me", or substantially similar language, is a special warranty deed with covenants of warranty as to the grantor's period of ownership of the property:

...................., whose street address is ........................, City or Town of ........................, County of ........................ and State of ........................, for the consideration of .............. dollars, in hand paid, hereby sell(s) and convey(s) to .................... whose street address is ...................., City or Town of ...................., County of .................... and State of ...................., the following real property in the County of ........................ and State of Colorado, to wit: ........................ with all its appurtenances and warrant(s) the title to the same against all persons claiming under me, subject to ......................... .

​ Signed this .................... day of ...................., 20..... .

...................................

(c) A deed for the conveyance of real property in substantially the following form that does not include words of warranty has the same force and effect as a bargain and sale deed at common law, but without covenants of warranty, and passes the after-acquired title of the grantor:

...................., whose street address is ........................, City or Town of ........................, County of ........................ and State of ........................, for the consideration of .............. dollars, in hand paid, hereby sell(s) and convey(s) to .................... whose street address is ...................., City or Town of ...................., County of .................... and State of ...................., the following real property in the County of ........................ and State of Colorado, to wit: ........................ with all its appurtenances ......................... .

Signed this .................... day of ...................., 20..... .

...................................

(d) A deed for the conveyance of real property in substantially the following form that does not include words of warranty and with the word "quitclaim(s)" substituted for "convey(s)" is a quitclaim deed without covenants of warranty that passes no after-acquired title of the grantor:

...................., whose street address is ........................, City or Town of ........................, County of ........................ and State of ........................, for the consideration of .............. dollars, in hand paid, hereby sell(s) and quitclaim(s) to .................... whose street address is ...................., City or Town of ...................., County of .................... and State of ...................., the following real property in the County of ........................ and State of Colorado, to wit: ........................ with all its appurtenances ......................... .

Signed this .................... day of ...................., 20..... .

...................................

(2) Any deed described in subsection (1) of this section may be acknowledged in accordance with section 38-35-101 or 24-21-515. Failure to state the address or the county or state of residence of the grantor or grantee does not affect the validity of the deed.

(3) Every deed in substance, in a form described in subsection (1) of this section or in any other form permitted by Colorado law, regardless of whether the deed recites valuable consideration or whether valuable consideration has been given for the deed, when properly executed, is a conveyance to the grantee, with covenants on the part of the grantor, if any, as set forth in subsection (4) of this section. Subject to any reservations specifically set forth in a deed, the form of deed used by the grantor does not affect the absolute nature of the fee simple conveyance of the property being conveyed and is not deemed to convey any lesser estate or interest simply by virtue of the form of deed used or whether the grantor provided any warranties of title in the deed.

(4) (a) The words "warrant(s) the title" in a warranty deed as described in subsection (1)(a) or (1)(b) of this section or in a mortgage as described in section 38-30-117 mean that the grantor covenants:

(I) That, at the time of the making of the warranty deed, the grantor was lawfully seized of an indefeasible estate in fee simple in and to the property described in the deed and has good right and full power to convey the property;

(II) That the property described in the deed was free and clear from all encumbrances, except as stated in the warranty deed; and

(III) That the grantor warrants to the grantee and the grantee's heirs and assigns the quiet and peaceable possession of the property and that:

(A) With respect to a warranty deed or mortgage, the grantor will defend the title to the property against all persons who may claim the title; and

(B) With respect to a special warranty deed, the grantor will defend the title to the property against all persons who may claim the title but only as against any persons claiming to hold title by, or through, the grantor.

(b) A covenant described in subsection (4)(a) of this section is binding upon the grantor and the grantor's heirs and personal representatives as fully as if it were written at length in the warranty deed.

(5) (a) A warranty deed or special warranty deed intended to include a limitation on the warranty of title pursuant to subsection (4)(a) of this section may use the words "subject to statutory exceptions" or include a different listing or description of exceptions as the grantor and grantee may agree. The words "statutory exceptions", when used in any deed, mean that the grantee accepts title to the conveyed property subject to:

(I) Real estate taxes for the calendar year in which the conveyance occurred and subsequent years that are not yet due and payable;

(II) All matters that are disclosed or that would have been disclosed by an improvement survey plat, as defined in section 38-51-102 (9), of the conveyed property or could have been ascertained by an inspection of the conveyed property and which matters were not created or otherwise known by the grantor; and

(III) All matters recorded in the real estate records of the county clerk and recorder for the county in which the conveyed property is located.

(b) If a warranty deed or special warranty deed includes a blank after a reference to "statutory exceptions" but no additional matters are specifically listed in the blank, the blank is deemed to be deleted from the warranty deed or special warranty deed, and the title conveyed is subject only to the statutory exceptions.

Source: L. 17: p. 158, § 1. C.L. § 4879. CSA: C. 40, § 11. CRS 53: § 118-1-13. L. 55: p. 717, § 1. L. 61: p. 638, § 1. C.R.S. 1963: § 118-1-13. L. 73: p. 1152, § 1. L. 2005: (1)(d) added, p. 404, § 1, effective April 27. L. 2017: (1)(d) repealed, (SB 17-097), ch. 117, p. 416, § 1, effective August 9. L. 2019: Entire section amended, (HB 19-1098), ch. 18, p. 64, § 1, effective March 7.

ANNOTATION

Law reviews. For article, "Curative Statutes of Colorado Respecting Titles to Real Estate", see 26 Dicta 281 (1949). For article, "Highlights of the 1955 Colorado Legislative Session—Real Property", see 28 Rocky Mt. L. Rev. 58 (1955). For comment, "Implied Warranties in the Sale of Real Estate in Colorado: Rational Boundaries of the Doctrine", see 53 U. Colo. L. Rev. 137 (1981). For article, "Signatures on Documents Affecting Title to Colorado Real Property — Part I", see 12 Colo. Law. 61 (1983). For article, "Buyers and Brokers Beware: The Contract-Deeding Trap for the Unwary", see 45 Colo. Law. 49 (Mar. 2016). For article, "Which Deed Should I Use?", see 48 Colo. Law. 34 (Jan. 2019).

Adoption of statutory form deed is clearly within domain of public policy. People ex rel. Attorney Gen. v. Jersin, 101 Colo. 406, 74 P.2d 668 (1937).

Ambiguity construed in favor of grantee. Where the deed contains no language expressly limiting the fee interest, but language creating an interest in real property is ambiguous, it is to be construed in favor of the grantee. Kanarado Mining & Dev. Co. v. Sutton, 36 Colo. App. 375, 539 P.2d 1325 (1975).

Construction of deeds with reconveyance clauses. Deeds with reconveyance clauses have generally been construed as creating a fee simple subject to a covenant to reconvey or a fee simple on a condition subsequent. Kanarado Mining & Dev. Co. v. Sutton, 36 Colo. App. 375, 539 P.2d 1325 (1975).

Warranty deed held unambiguous as conveying, rather than reserving, mineral rights. First Nat'l Bank v. Allard, 182 Colo. 297, 513 P.2d 455 (1973).

Covenant of general warranty is a guarantee that the grantor is vested of an estate in fee simple with full power to convey, that the property is free of all encumbrances except as listed in the deed, that the grantor will guarantee title and peaceful possession, and will defend the grantee's title to the property. O'Brien v. Vill. Land Co., 794 P.2d 246 (Colo. 1990); Ford v. Summertree Lane Ltd. Liability Co., 56 P.3d 1206 (Colo. App. 2002).

Conveyance by warranty deed is promise from grantor that, at time of execution, grantor was lawfully seized of estate conveyed, that estate was free and clear of all encumbrances except as stated in deed, and the grantee is warranting the quiet possession of the property and that the grantor will defend the title against all persons lawfully claiming title. Upton v. Griffitts, 831 P.2d 504 (Colo. App. 1992).

Three-year statute of limitations for action in breach of warranty did not start to run until plaintiffs knew, or should have known, of the government's adverse possession of the property. Upton v. Griffitts, 831 P.2d 504 (Colo. App. 1992).

Court properly awarded attorney fees as damages for breach of deed warranties in action to establish rights to use road, but improperly awarded attorney fees for plaintiffs' efforts to establish that road was public and that the county was obligated to maintain it or for claims concerning indemnity issues. Davis v. Gourdin, 831 P.2d 497 (Colo. App. 1992).

As to when covenant against disturbance of possession is broken. See Andrus v. Saint Louis Smelting Co., 130 U.S. 643 (1889).

Vendee's knowledge of encumbrance. While, as a general rule, in an action of covenant for breach of warranty against encumbrances, the knowledge of an encumbrance upon the part of the vendee does not constitute a defense, yet when it appears that the vendee has assumed the removal of such encumbrance, the rule does not apply. McClellan v. Morris, 71 Colo. 304, 206 P. 575 (1922).

The sale of property with structures in violation of a building code is not a breach of the covenant against encumbrances because building requirements are difficult to discover once a structure has been built. In the case of a violation of zoning laws, however, which exist at the time of conveyance and are cited as conditions to the issuance of the certificate of occupancy, there is a breach of the covenant against encumbrances. Feit v. Donahue, 826 P.2d 407 (Colo. App. 1992).

An order for the alteration of a structure already built in violation of a law or ordinance, or for penalties imposed for such violations, constitutes an encumbrance. Feit v. Donahue, 826 P.2d 407 (Colo. App. 1992).

When a buyer agrees to buy "subject to building and zoning regulations", the possibility of a breach of the covenant against encumbrances is not forever foreclosed because the buyer is not obligated to take the property subject to existing zoning violations. Feit v. Donahue, 826 P.2d 407 (Colo. App. 1992).

Language in a sales contract that the buyer agrees to buy "subject to building and zoning regulations" merges at closing into the deed, by the doctrine of merger, which deed thereafter contains the rights of the parties. Feit v. Donahue, 826 P.2d 407 (Colo. App. 1992).

Applied in Thomas v. Dunnean, 75 Colo. 216, 225 P. 253 (1924); Veatch v. Philip J. Lasky, Inc., 29 Colo. App. 31, 477 P.2d 468 (1970); Doty v. Chalk, 632 P.2d 644 (Colo. App. 1981).