Real Estate E-Newsletter

Title Insurance

Title refers to both the rights of ownership of a particular property and the documents that prove the existence of those rights. Marketable title means that the property's ownership, as reflected in the real estate records, has no problems or only minor problems that any well?informed and prudent buyer would accept. Any buyer of real property obviously wants and expects to get what her or she paid for, that being clear title to the property. The buyer expects, for example, that the person selling the property has the right to do so, that all of the owners have joined in the sale, that all mortgage and other liens have been paid (or will be knowingly assumed as part of the transaction), and so forth.

Title insurance, as the name implies, is an insurance policy, usually issued for a one-time fee at the time real property is purchased, which insures against title problems. If the property being purchased is secured by a mortgage, the lender will virtually always insist on title insurance in the amount of the mortgage loan, which will be paid by the buyer. It is important to understand, however, that this lender's policy or mortgagee policy doesn't protect the buyer of the property. For that, an owner's policy is required.

The owner's title insurance policy provides two types of coverage. First, if ownership of the property is contested, the title insurer will defend the title at no expense to the owner and attempt to eliminate the title defect. Second, if it turns out that there is a title defect that cannot be eliminated, title insurance protects the owner from financial loss up to the amount of the policy (which is generally issued in an amount equal to the purchase price of the property).

One alternative to title insurance is an attorney's title examination of the property. This involves an attorney reviewing the legal history of the property and other relevant federal, state, and county records to determine the owners of record, and the existence of any present or past mortgages, court judgments, probate proceedings and divorces, foreclosures, tax and construction liens, and other matters that could affect title. If the attorney's title opinion reveals problems, the seller will then be required to correct the problems prior to closing the sale. An attorney's title opinion will reveal most common title defects and can in some circumstances be less expensive than an owner's title insurance policy, particularly in cases where the buyer is not already required to purchase a lender's title insurance policy as part of the transaction.

On rare occasions, however, a real estate title may contain hidden defects that may not surface even in the course of a thorough title examination. One example would be the existence of a forged deed or satisfaction of mortgage in the chain of title. In such a case, title insurance would cover the buyer against any loss resulting from the forgery. The point of title insurance is to secure the owner's rights to property and protect the owner from a hidden defect of this nature. If the owner is forced to defend his or her title in court, the insurer agrees to pay the costs necessary to solve the problem. Many law firms specializing in real estate law are affiliated with title insurance agencies and can issue a title insurance policy. This provides the consumer with the best of both worlds, as a title insurer not affiliated with a law firm does not represent the consumer's legal interests and cannot give legal advice.

Questionnaire: Restrictive Covenants

For most people, a home is the biggest purchase of their lives. Before you make that investment, make sure you know the parameters of any restrictive covenants to your new property. A restrictive covenant is an agreement, usually set forth in the deed, which limits how you can and can't use your property.

• Are you restricted in the types of materials you may use to build a fence, chimney, addition, outbuilding, or roof?
  
  
• What color are you allowed to paint your house?
  
  
• Is day care allowed on the premises? Are there restrictions about swing sets or other children's play equipment?
  
  
• Must you submit building plans to your municipality or development association for approval before you build?
  
  
• Is there a height limitation imposed on your property in order to protect your neighbors' view?
  
  
• Are you prohibited from storing "junk" in your yard? What is the definition of "junk"?
  
  
• Do you need a permit before you add-on or re-roof?
  
  
• Are you allowed to have a clothesline?
  
  
• Is there a restriction regarding installation of air conditioning units?
  
  
• If you want to install a pool, are you allowed to choose to put it above-ground or in-ground? If it is above-ground pool, are you required to surround it with a certain type of fence?
  
  
• Are you allowed to dig a well for irrigation purposes?
  
  
• Are you responsible for controlling weeds, mowing your lawn, and landscaping according to certain standards?
  
  
• How many cats or dogs are too many? Are you allowed to keep pets other than cats and dogs?
  
  
• Is your home office allowed? Are there restrictions about the kind of home-based business you may have?
  
  
• When is a property considered "blighted"?
  
  
• Are you prohibited from erecting signs in your yard, or are signs allowed within certain size and subject restrictions?
  
  
• Is there a prohibition against storing motor vehicles on your property?
  
  
• Is there a restriction governing antennas and satellite dishes?
  
  
• Does a covenant restrict your right to cut down trees in your yard?
  
  
• Is there a start-to-finish limit on the length of time of your construction project?
  
  
• What restrictions are there, if any, on prefabricated, modular, motor, mobile, or manufactured housing?
  
  
• What kind of outside window treatments are permitted or prohibited?
  
  
• Are there any utility or maintenance assessments charged to your property?
  
  
• What does your deed say about driveways, garages, and parking spaces?

DISCLAIMER: This site and any information contained herein is intended for informational purposes only and should not be construed as legal advice. Seek competent legal counsel for advice on any legal matter.

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