Metal survey peg with red flag on construction site

Land Surveys: Why You Need One (Part 1 of a Series)

The information provided by a land survey can make all the difference in ownership and use.

A land survey provides a visual reference to what your property looks like on the ground and who might make a claim to your ownership based upon their use or possession of part of your property.

There are many types of surveys, but to provide title insurance coverage, a  “Boundary Survey” is required.

The Boundary Survey locates the property on the globe and in relation to the property surrounding it. It also shows the improvements located on the property including fences and evidence of occupation or use.

The survey determines what is physically present on the land to be insured and locates that land in relation to other properties in the area.

Why should you care?

Because who is in possession of all or part of the land you’re buying, determines who may have a claim to it.

Possession may not be nine-tenths of the law, but it is very important. If someone possesses part of the land you’re buying, they may have a claim to ownership of that area.

Choosing a quality surveyor is a challenge just like choosing any other professional to do work for you. Possession may not be nine-tenths of the law, but it is very important. If someone possesses part of the land you’re buying, they may have a claim to ownership of that area.

There is no magic formula, but pay attention to his or her credentials,  reputation or even better, referrals from those you already know and trust.

The cost of a typical residential survey is minimal when compared with the investment in your home or property and cost ranges from a few hundred dollars to much more if dealing with commercial or large tracts.

I’ve personally spent $1,500 for a survey of ten acres by an excellent surveyor, and as little as $300 for a residential lot by an okay surveyor.

To better understand why a survey is important, there are two elements that affect ownership:

  1. The land records maintained by the local government; and
  2. The actual occupation of the property

For a title insurance policy to be issued, the insurer searches the land records. We don’t see the actual property, just paper describing it.

That search is examined to determine who owns the property and who has claims to it.

Since we cannot see the actual land, the title commitment and policy take exception for anything that would have been discovered with a visit to the property or with a proper survey done by a surveyor.

So, if you want coverage for what might not be in the records that could affect your ownership or rights, a survey is needed.

Parts II and III of our continuing discussion of land surveys will get further down in the weeds on land survey trip-ups and issues.

But a simple look-see at what a land survey can avoid is in this simple (yet very complicated) dilemma: A buyer agrees to buy Lot 3 – a 100-foot lot.  Research of the records shows the seller owns it. No survey was done.

Later it is discovered that the lot is only 90 feet to the neighbor’s fence.  The neighbor says that 10 feet is theirs. The exception in the title policy may prevent any claim under the policy.

(If a survey was done before closing, this issue could have been dealt with ahead of spending the money for the lot.)

Or you buy Lot 3 without a survey, but the house you were shown is really on Lot 2!  No survey, maybe no loss paid under the policy since you do own Lot 3.

Stay tuned for Parts II and III – where reliability, defendability and who owes whom what gets sorted out.

blank check

Obtaining Payoff Statements Directly from the Lender

Looking to avoid title claims related to unpaid mortgages and deeds of trust? We offer 4 tips

Our Claims Team has received various claims related to unpaid mortgages and deeds of trust. Here are two scenarios we have seen arise in the context of a claim:

Scenario One

The agent receives a payoff statement from the seller. The seller sends an email requesting the payoff from the lender and copies the agent on the email.

The agent relies on the email and the payoff statement to wire funds to the lender.

Later, it is discovered that the email address for the lender is fake, and the bank account receiving the payment was held by the seller, not the lender.

Scenario Two

The agent reaches out to the lender for a payoff statement. However, the closing date is approaching, and the lender has not responded.

The seller provides the agent with a printout showing a zero-balance owed on the account. The agent contacts the lender once again for a payoff statement.

The lender confirms over the phone that a zero balance is owed. The agent closes the transaction based on these representations.

Later, it is determined the original lender confirmed a zero-balance due because the loan had been sold to another lender.

An assignment of the mortgage had been recorded, and the current holder of the notes filed to foreclose.

Here are 4 tips to help you avoid these types of claims:

  1. Always obtain a payoff statement directly from the lender. Do not rely on payoff statements provided by other parties. Your request for a payoff should include a letter of authorization from the borrower, the loan number, the property address, the borrower’s name and your fax number or email address.
  2. Only rely on a payoff statement sent by the current holder of the note. Check the MERS system, (if the mortgage is a MERS loan), and the public records for the last assignee.
  3. Be mindful of working with hard money lenders – hard money lenders may assign their interests off the record. (See Bulletin 2017-02 and Claims Title Tip dated September 18, 2017 discussing hard money lenders .)
  4. Obtain separate payoff statements directly from each lender with an interest in the property being sold or refinanced. Do not rely on representations from the borrower or other institutions regarding the balance of a loan.
tree house gavel

Recorded judgments in Arizona do not encumber homestead property, but watch out for a Lis Pendens

By Scott A. Malm

Many lawyers representing creditors record their money judgments and let escrow companies collect the judgment amount for them when the debtor sells real property.

But after a recent published opinion in Arizona applying its homestead protection laws, that practice may soon come to an end if the real property is protected by the homestead statutes.

In Pac. W. Bank v. Castleton, No. 1 CA-CV 17-0667, 2018 WL 6815531 (Ariz. Ct. App. Dec. 27, 2018), the Arizona Court of Appeals considered the effect of a $5.2 million recorded judgment on a subsequent conveyance of a personal residence by the judgment debtor to a third-party buyer.

After the close of escrow, the judgment creditor sought to collect its judgment against the buyer by filing a judicial foreclosure complaint.

Such action triggered coverage under a title insurance policy (not an Alliant National policy!) because the judgment was not listed in Schedule B.

The Arizona Court of Appeals had to decide the purely legal question: Is a recorded judgment a lien that encumbers homestead property? If so, the insured would lose its property.

heloc computer

Issues Posed by Home Equity Lines of Credit (HELOC)

By Carleton Burch Anderson
McPharlin & Conners LLP Lawyers

Protecting against the stale HELOC and mitigating losses.

Home equity lines of credit (“HELOC”) secured by Deeds of Trusts are a fixture of modern consumer finance. According to an article appearing in the Washington Post, an estimated 10 million homeowners will open a HELOC between 2018 and 2022.

For the title insurer, the revolving nature of the HELOC, coupled with the fact there is no universally accepted procedure for closing a HELOC and reconveying the Deed of Trust in connection with a subsequent transaction, creates a unique problem.

With property values on the rise, there appears to be an uptick in foreclosures of HELOC loans.

Thus, downstream owners and lenders are faced with issues relating to not only the validity, but the amount and priority of the HELOC.

This article discusses ways to protect against the stale HELOC and how to mitigate losses.

From the underwriting perspective, never assume that an earlier refinance, sale or conveyance resulted in the release of the HELOC Deed of Trust unless there is a Full release of record.

More often than not, it happens that a HELOC was paid down through a refinance, but the HELOC was not closed and the borrower continued to draw down.

Where a subsequent lender intended its loan to pay the HELOC and be secured as a first priority Deed of Trust but there is no release (or subordination agreement), a lien priority dispute may arise.

To protect against such a situation, as part of the closing there should be express instruction signed by the borrower to close the HELOC and there should be a full release Deed of Trust or subordination agreement executed by the holder of the HELOC Deed of Trust.

Recent case law confirms the need for caution. The California Court of Appeals decision Bank of New York Mellon v. Citibank, N.A. 8 Cal.App.5th 935 ( 2017) in which the court found that the HELOC was not automatically extinguished as a result of the loan being “paid off” or “paid down” absent express instructions to the lender to close the line of credit and reconvey the security.

The court held that a subsequent owner took subject to the lien of the prior HELOC.

To avoid the unique issues that come with an outstanding HELOC claim, be mindful of any open HELOC Deeds of Trust. Be sure to provide express written instructions to the lender, signed by the borrower, instructing the lender to close loan and reconvey the property.

If you have any questions when working to close out a HELOC Deed of Trust please contact Alliant National’s underwriting department.

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