Category Archives: Title Tip of the Week

Endorsements

lawyer-cartoonFor your Title Insurance Policy, the endorsements either extend or alter the policy’s coverage, or are used to interpret its provisions.

In most cases, endorsements are buyer’s charges, as they usually attach to the loan policy only. There is a whole list of possible endorsements, and which ones will come with your policy will be determined by the type of property being purchased. The lender will advise what endorsements will be required.

Three of the more common endorsements you will see are:

‐ 5.1 Planned Unit Development (PUD) – provides insurance that, (1) there are not violations of restrictive covenants, and any violation of the covenants will not cause a forfeiture or reversion of title; (2) the mortgage has priority over liens for charges and assessments by any HOA; (3) no existing structure will have to be removed because of any encroachment; (4) there has been no prior right of first refusal which would defeat title.

‐ 8.1 Environmental Protection Lien: this endorsement provides limited insurance that no environmental protection lien has been filed of record or provided for by state law as of the date of the Policy that has priority over the mortgage.

‐ FL9 (AKA Florida Form 9) Restrictions, Encroachments and Minerals Endorsement:
provides insurance against loss or damage resulting from the violations of deed restrictions, encroachments and set back lines existing as of the date of the policy.

Avoid an Unknown Title Company

Underwater minefield concept

In most of our market area, unless otherwise specified in the contract, the seller pays for the Owner’s Title Insurance policy. In Florida, the person who pays for the policy gets to choose their settlement services provider.

Does that put buyer’s agents and their customers at the mercy of the listing agent and the seller about where they will close? Not necessarily.

If you want the access, accountability, value, and the same team that helps get your listings to the closing table to work your selling side transactions as well, you can ask the seller to close with us.

All you need to do is to put in the “additional comments” section of the contract, “Title Insurance and Settlement Services to be provided by Watson Title Services of N FL Inc.”

The seller may line it through, but every month, we have a lot of sales associates bring selling side transaction to us this way. If listing agents or sellers ever have questions about closing with us, I’d love to talk to them about the benefits.

Give it a shot on your next deal.

What is $10 Between Friends?

Signing_Warranty_DeedWhen someone is about to sign a deed, have you ever had them ask what this line means?

“…for and in consideration of the sum of $10.00 (ten) and other valuable considerations…”

In real estate, you see it over and over … but for a customer who has not seen it before, it can be confusing.

The best way to describe it to them is that it is simply a legalism. It even has a cute name; a peppercorn.

In legal terms, the $10 is a “peppercorn consideration.” It is an actual common law term to make it clear that an actual enforceable transfer is taking place and not a promise.

To make a contract enforceable it needs a little “real” value as consideration; hence, “in consideration of ten dollars and other valuable consideration….” This is considered the “form” of the exchange of valuable consideration. The actual value is immaterial, it could say ten dollars, it could be one dollar… one famous judge has said that it can be something as small as a “peppercorn”… which is why this is often called “peppercorn consideration.”

If they really want to get in the weeds they can google the Real Estate Closing Deskbook: A Lawyer’s Reference Guide & State-by-state Summary by the American Bar Association, page 65.

Oh, and tell them they can keep the $10 in their wallet, you don’t need that.

Where’s My Money?!?

wirexferA common source of frustration at the closing table with lender involved deals is “waiting for funding.” To the average customer, when they think of wiring money, they assume it happens at the speed of light. It doesn’t.

The reasons buyers go first at the closing table is that some lenders may require the closing agent to fax/email signed documents so they can review and approve the signed documents before they will release the buyer’s funds. This is where patience is needed.

For some lenders, this can take 30-minutes after everyone has signed the documents at the closing table. Once the lender sends the wire, the money can take another 30-minutes to 3-hours to get to the closing agent’s bank. From there, seller’s proceeds, commission checks, payoffs, etc can then move forward.

If the wire from the lender is sent after 2-pm, sometimes funds are not received until the following day. Especially on Fridays this can cause a lot of avoidable points of friction.

A closing is not complete until the seller received their money, i.e. the closing agent’s bank receives the buyer’s funds.

What is the Title Services Fee?

confused-money-counterA few years ago CFPB changed closing requirements and we came in to the brave new world of Closing Disclosures and the ALTA Settlement Statement. For closings that involve a loan, additional work-hours are needed to get each deal to the closing table increased for settlement service providers.

To reflect that additional workload, the contracts most popular in our area, the NEFAR and FR/BAR contracts, included verbiage to make sure buyers were aware that if a loan was involved in the transaction, they should expect an additional closing related fee.

In the NEFAR contract, look to lines 197-198 under “BUYER WILL PAY;”
– “…lender related settlement/title services fees charged to process, close and post close BUYER’S loan(s).”

In the FR/BAR contract, look to lines 172-174 under “TITLE EVIDENCE AND INSURANCE;”
– “…Buyer shall pay … closing services related to the lender’s policy, endorsements and loan closings, which amounts shall be paid by Buyer to Closing Agent…”

When you get your draft ALTA, the Title Services Fee should be clearly stated in the “Title Charges & Escrow / Settlement Charges” section. For cash closings, make sure that charge is not there. The Title Services Fee to buyers only applies if a loan is involved, and is not intended to be a general charge for both loan and cash closings.

Frustrate a Thief; Don’t Abbreviate 2020

What-Is-Check-Fraud_Make sure your customers write the full year 2020 on checks, official forms, and legal documents.

The shorthand version of the year can lead to manipulation of numbers and potential vulnerability to fraud.

Good: Month/Day/2020
Bad: Month/Day/20

Remember, you are not being paranoid if people are actually out to get you.

Remote Online Notarization

remoteonlinenotarizationWith the New Year, Florida’s new Remote Online Notarization (RON) law is going into effect. This is the next step along the path toward e-closings.

RON allows parties in real-time audio-visual communication to actively participate in a closing by electronically signing documents that require notarization.

The RON licensed notary must be physically present in Florida, but the signatory can be located virtually anywhere provided they have a U.S. social security number.

Though RON is “a go” in FL, it is not ready to start being used right away.

The key is that the Florida Department of State is still in the process of promulgating rules, finalizing the application process, and generally preparing Florida for RON.

Once that is done, the next challenge will be the approval of a proper platform that provides the statutorily required identity-proofing, credential analysis, and a secure repository to store required RON electronic records and journals.

Once the State and Industry have everything in line to enable RON, we will let you know.

Let Us Start Your Title Search When You Get the Listing

Title-Search-by-KeywordsEver had a listing that looked like it was going on be a nice, clean closing, but once “Title comes back,” issues come up that delay the closing for days, weeks or even months as issues are cleared up? Do you wish you knew earlier so there was time to clean up the Title before a contract comes in?

There’s no reason to wait for a contract to come in to get the ball rolling towards the closing table. Bring the Listing Preliminary Title Search form linked below with you to listing appointments. When homeowners complete the listing agreement, have them complete this as well and we can order the Title search right away.

Just hand it in with the listing agreement to your office’s Title Liaison and off we go.

Benefits:
– Advises the seller of any Title issues that need to be cleared up prior to closing
– Advises the seller if FIRPTA applies
– Asks the seller for information ALL at one time
– Avoids delays in the closing which means you get your commission faster and with fewer frustrations!
– No charge if the listing is cancelled.

Check with your Watson Title Services of N FL Inc. Title Liaison for the Preliminary Title Search form, or click here.

Suit to Quiet Title

paper-files-stack-of-papers-surprisedOne of the most important things a title company does is to make sure a new homeowner has full possession of the property they are buying. After moving in, new homeowners should not have to deal with issues created before they purchased it.

A title search looks for these problems. Most can be resolved, but on occasion things are discovered that can only be cleared via the legal process; a Suit to Quiet Title (SQT).

The purpose of a SQT is to remove the “noisy cloud” on the title that is preventing it from being “quite and clean.”

The most common causes of a SQT are:
1. Incorrect deed where a person with interest in the property, such as a missing heir or a spouse not on the deed of a homesteaded property, was not properly removed from title in a previous sale.
2. The property was incorrectly probated, or not probated at all.
3. Improper use of a power of attorney.
4. Intra-family transfer of title with errors.
5. Incorrect legal descriptions on deeds.
6. Foreclosures where not all judgments were included on the foreclosure and stay with the property post-foreclosure.

A SQT can have significant legal costs to resolve and a few months to work its way through all the hoops. If the owner had title insurance, they may be covered for the expense incurred to getting a clean title through SQT. This is another reason that buyers must insist on having owners Title Insurance – because they don’t want to try to sell a home a few years down the road only to find out that they will have to wait half a year and spend thousands of dollars to clean up other people’s mess.

Six Steps to a Closing

Signing_Warranty_DeedEvery closing has its own special path to take, but both the easy and quick ones and the difficult and drawn-out ones all have the same six major milestones.

When done right, buyer and sellers will only have to worry about the last two, but for that to happen – everyone needs to work together for the first four.

1. Opening a file/Ordering Title: We receive a listing agreement or purchase and sale agreement. We notify our underwriter and create a file here.

2. Title Work begins as Examiners and Abstractors conduct title search including history of the property, owners of record, and liens of record on the title.

3. A Title Commitment is issued for the property and Processors work on pre-closing requirements such as ordering payoffs, Estoppel Letters, coordinating with lenders and surveyors to clear title.
4. Lender documents are received and closing documents produced. Closing date and location agreed by all parties.

5. Closing occurs or all mail-aways received. Funding executed.

6. Closing documents recorded, as required, and title insurance policies are issued.

Always remember, if you have a customer who has lost their closing documents, we have electronic copies of the closing packages on file going back to well over a decade. At no cost, we can get a copy for them – just let us know.