The number of residential property sales exploded over the past few years, but the hot real estate market may have driven at least one unexpected consequence when it comes to surveys. Amid the highly competitive market, some home buyers may have been told that it would take longer to close a transaction since surveyors were overwhelmed with numerous orders. Thus, some buyers elected to waive surveys. After purchasing the property, however, buyers may have discovered encroachment matters impacting their property or their neighbor’s property, or that a boundary line is in a different location than originally believed.
Every year the claims team receives several notices involving survey matters and boundary disputes. Here are a few scenarios that serve as a reminder about the importance of surveys, and what you can do when a transaction does, or does not, include a survey.
Scenario One: A new buyer does not obtain a survey at closing. She is visited by her neighbor a few days after purchasing the property. The new property owner believes it’s going to be a friendly visit but instead the neighbor says, “your driveway and garage are encroaching on my property, and we want it removed in 30 days or else you will be hearing from our attorney.”
Typically, such an encroachment would have been shown in a survey. Further, the title policy may not offer much relief to the beleaguered buyer in such a case.
A title policy will likely have reflected a standard survey exception in Schedule B which may read, “Any discrepancies, conflicts, or shortage in area or boundary lines, or any encroachments or protrusions, or any overlapping of improvements that would be disclosed by an inspection or an accurate and complete land survey of the Land.” Since a survey was not obtained in this scenario, this may result in the matter not being covered under the title policy.
Scenario Two: This next situation involves a seller who owns a large tract of land and decides to split the tract into three smaller lots. The seller only wants to sell and convey one of the smaller, unplatted lots. The legal description in the seller’s deed is for the entire larger tract. How will the parties determine which of the three tracks is to be sold and properly identify the location of the property and its legal description to include in the deed? The purchase agreement most likely is not clear and will require additional questions and written clarification between the agent and the parties as to what is intended to be conveyed in the transaction. Unfortunately, without clarification in such cases, the parties may eventually find themselves in an expensive lawsuit.
In either scenario, if a survey is not requested and purchased at the time of closing, it is a good practice to have the buyer sign a document that the party understands a new survey is being declined, and to keep the document in the closing file. On the other hand, if a survey is obtained ahead of closing the transaction, consider the following:
Review the survey for accuracy of the survey and the survey certification. Are the correct parties identified? Review the legal description. Do you have a signed and dated survey from the surveyor?
Carefully review the survey to locate any items beyond the boundary lines or encroaching onto the buyer’s property.
Add any specific survey matters which are reflected on the survey as exceptions in the title commitment.
Provide a copy of the survey to the buyer (and lender, if appropriate).
As a good practice, have the buyer acknowledge receipt of the survey by having the buyer sign and date either the survey or a separate document confirming receipt, and keep a copy in the closing file.
Also, in certain jurisdictions, Survey Coverage or Survey Endorsement may be available for purchase to add coverage to an Owner’s or Loan Policy. If permitted in your jurisdiction to rely on a prior survey and an affidavit, discuss such a situation and the requirements with the Alliant National underwriting team before the closing occurs.
We understand not every case requires a new survey, but a buyer may find that a survey provides an understanding of what was conveyed and some peace of mind regarding their investment.
If you have questions, please contact the Alliant National claims team.
One agency owner underwritten by Alliant National recounts his long, successful career in the title insurance field.
Rob Skidmore knows his way around title insurance. The owner of several agencies underwritten by Alliant National, he and his employees serve aspiring homeowners in Medina and northeastern Ohio and are driven to help home buyers achieve their dreams.
His journey in the title insurance field offers a fascinating portrait of a professional life well lived, as well as how the industry has changed over more than three decades.
Title insurance is a multi-generational endeavor for the Skidmore family. His father started Transfer Title in 1967, with Rob joining the business in 1985. He eventually took over the company with his brother. They gradually expanded the business, forming the joint venture company Transfer Title Connection in 2004 and acquiring Ohio Fidelity in 2018.
There were other factors behind Rob’s initial interest in title insurance, such as his passion for technology and computers.
“When I was in college, I had this class that required a spreadsheet. I created a settlement statement with macros that could compute settlement costs,” said Rob. “After graduation, I used it in business for maybe six or seven years before we updated to a new system.”
His interest in technology trends has continued to benefit Rob and his businesses, prompting him to be an early adopter of new technologies to increase efficiencies, improve customer experiences and grow profits. One such decision involved implementing RamQuest software early on, which made them only the second title company to do so in Ohio at the time.
“I love the technology – the experience of building out our IT department, purchasing our own server and so on,” said Rob. “My interest has pushed me to be an early adopter, which has benefited our employees and customers.”
Another factor that has influenced many of his decisions as a company owner was his background as a business major with a marketing concentration. Rob was immediately attracted to the prospect of overhauling his agencies’ brands.
“I quickly started working on our slogan, which ultimately led to a name change,” said Rob. “We also decided to do a major overhaul of the logo, which involved an internal focus group.”
Over the years, Rob has found his title career to be quite rewarding, especially the way it has benefited his community.
When asked if there is a central passion behind his work, Rob is unequivocal. “Absolutely. Our motto is ‘Insuring Reality, Conveying Dreams.’ People outside the industry don’t get that when you’re issuing title policy, handling escrows and doing closings, it’s a joyous occasion. Take a young couple who has the dream of starting a family. Or consider someone who is looking to downsize. It was their dream, and they are passing it along to the next family. In both cases, it’s an extraordinary thing.”
Another way Rob has been able to better his community is through charitable giving. As a long-time member of the local business networking group, Transfer Title annually sponsors families at Christmas and makes a variety of donations to local charities. In addition, the company is a supporter of the Mary Grace Foundation, sponsoring its 5K run each year and encouraging employees to run or participate. The money raised during the event goes to families impacted by breast cancer.
Transfer Title’s commitment to enriching the heart of the Medina community is perhaps best embodied in its support of Mainstreet Medina. A non-profit organization, Mainstreet Medina supports efforts related to the historic preservation, economic sustainability, and continued evolution of Medina’s Historic District as the community’s vibrant center. Transfer Title not only routinely sponsors Mainstreet Medina’s initiatives and events, but it has conducted title work for real estate revitalization efforts undertaken recently by the Recovery Center of Medina, which included pro bono legal work by Rob.
Rob has impacted Medina not only through his company, but also by serving on various community, business and industry associations. He is an active participant in the Ohio Land Title Association (OLTA) and has previously served as the President of the Medina City School Board, the Medina County Career Center, the Medina County Bar Association and the Salvation Army board.
In addition to witnessing the positive effects his businesses have had on the community, Rob’s long history in the field has given him a front row seat to the evolution of the title industry.
“The title industry has changed a lot, and I have seen different eras come and go,” said Rob. “Recently, it has been a very profitable era, which is positive in many ways. However, there is increasingly a focus on speed, with everything being go, go, go. Less emphasis is being placed on expertise and working diligently through a process. Marketing and newer communication mediums like social media are taking more precedence. Now, both are important. Very important. But expertise and doing good work will always trump everything else.”
As Rob sees it, prioritizing expertise matters, particularly when it is not always clear to the customer how the title insurance process works and why it is a critical component of the closing process.
“Sometimes during closings, questions will come up of how the company got involved. It’s important to properly educate the customers and remind them that we are here to insure their title,” Rob explained. “We act, essentially, as a guarantee on their claim of ownership. With a one-time premium, they are protected for life. As a third party, you need the expertise to work on behalf of the owner, buyer and lender. Simply put, it’s a very important function. We need to follow the directions of all parties, not to mention look at and assess all relevant risks.”
Rob emphasized that to succeed in the field requires building a team with the requisite expertise. But that is not all. Those working in title insurance must also be equipped to contend with the emotional intensity that can be a part of the closing process.
“Without a doubt, attracting and retaining top talent is one of the biggest challenges I face as a business owner, and we’ve been lucky to have some of the best staff in the business,” said Rob. “Employees need to know their field but also deal with the stress of closing on a property.”
Considering the complexity of real estate transactions, title insurance professionals must be comfortable expecting the unexpected.
“Quite often, things happen or there are forces at work beyond anyone’s control,” he said. “Thankfully, advances like ‘clear to close’ have changed the game and streamlined it. Technology helps.”
As with anything, though, technology is not without its downsides, as cyber threats like real estate wire fraud have exploded in recent years. Such developments once again underscore the need for high-quality IT systems and experienced professionals who can safely guide consumers through the process.
“You’re only as good as your weakest technological link in the transaction,” Rob cautions. “Cybercrime is a huge problem in this field. Title agents must communicate effectively with customers about all pertinent risks. We have spent a lot of time and resources implementing preventative measures like encryption. But sometimes, old school methods like snail mail are still the best approach.”
Another piece of the puzzle is finding trustworthy underwriters with whom to build effective and mutually beneficial partnerships. In Rob’s case, one such underwriter is Alliant National.
He is particularly appreciative of Alliant National’s great technological systems. In addition, he noted that the underwriting relationship is often a key factor in determining what properties can ultimately be closed. He explained that not all underwriters are the same in how they approach deals or navigate risks.
“There can often be potential defects in the chain of title,” said Rob. “Some underwriters may not like that. But with Alliant National, I have a lot of confidence in their management, technology and, of course, people in navigating those issues.”
After more than three decades in title insurance, few people are more well-versed in the field or capable of commenting on its evolution than Rob Skidmore. Through building out his businesses, he has achieved a great deal of both personal and professional satisfaction and shared the fruits of his efforts with his surrounding community. He has also continuously prioritized what has always been essential to a good and lasting business: focusing on people, creating relationships and establishing hard-won expertise. These are the principles that animate him. They are also what he seeks to impart to those who may come after him.
“Whenever you’re faced with making a customer happy or doing the right thing, always do the right thing, even if you lose some business because of it,” he said. “Business always comes back in other ways. There is an old saying about how it takes a lifetime to build a reputation but a second to lose it. I couldn’t agree more. In title insurance, you may find yourself faced with such decisions. Always, always, always, do things the right way.”
In a hot housing market, many buyers have turned to cash offers to get a leg up on the competition. Cash offers are often much more attractive to a seller, and it is not difficult to understand why. Cash can provide a pathway to a faster closing process. It frequently gives sellers more confidence. These offers even waive the requirement of having to conduct an appraisal.
Cash offers can also generate a bit of a confusion. For instance, how does eschewing a lender affect other parts of the closing process like a title search and insurance? Does it eliminate the need for insurance? If not, how and when should a cash buyer pursue title work? In this blog post, we will examine these questions.
Is Title Insurance Necessary for Cash Buyers?
Title insurance is critical for a buyer to have regardless of whether there is a mortgage. Without a title search and resultant policy, no one is looking into who owns the property and what its issue may be. When a buyer obtains a mortgage, a title search is routine. But the contract and the obligation exist only between a lender and the title company – the buyer has no direct protection. If a defect exists, the title company is not duty-bound to fix it; instead, the buyer/owner could be liable for a lien or another defect.
For example, consider a scenario where a home seller has a first mortgage for $100,000. A new buyer has obtained a loan for $125,000, and the property is worth $200,000 (in other words the buyer has invested $75,000 of their money). Meanwhile, there is a second valid but unknown mortgage of $50,000 against the property.
The lender uses this to assert their right to foreclosure and to take the property away. In such a scenario, the title company is required to defend the lender and protect their lien. The same can not be said for their relationship with the buyer. Instead, the buyer/owner must pay the unknown mortgage because they gave warranties of title to their lender.
Failing to do so could trigger a default. The lender, however, will not suffer losses. Under their title policy, there is enough equity to pay the newly discovered $50,000 mortgage and the lender’s debt. Without an insurance policy, the purchaser of the property could lose the title and, ultimately, their equity. They would be forced to pay the $50,000 to maintain ownership.
In each case, the seller is likely liable to the buyer for the $50,000, but when title insurance comes into play, the insurer will not only pay the loss but sue or pursue the seller for recoupment. But when there is no title insurance to speak off, all the costs fall on the buyer if they decide to sue the seller – who may not be able to pay even if the suit is successful. The same situation can develop in the case of a scam. If the seller is a bad actor and does not own the property, a buyer can wind up with nothing if no record search is conducted.
What should be clear from that example is that, for just a nominal cost, title insurance can offer an easy remedy if there is something wrong. More importantly, it allows the buyer to know of any issues before investing money in the property. Title insurance also does not impede the advantages inherent in making a cash offer. As noted, one clear advantage of a cash offer is that it can speed up the closing process. Conducting a thorough title search does not disrupt this accelerated timeline. Typically, title work can be completed in 2-4 days and, depending on what is found, a commitment can be issued shortly afterward.
How and When Should Cash Buyers Procure Title Insurance?
When considering title insurance, an interesting question emerges regarding who gets to select the title insurance provider: broker, buyer or seller? To some extent, who does the referral and who pays for it is a matter of local practice. Typically, the party that pays makes the choice, but not always.
If possible, purchasers should maintain control over the issuer of the insurance. The buyer should want to know everything they can about the title’s status. Additionally, if the insurance provider is selected by the seller, there is the possibility that they may try to show that the title has few to no problems.
When searching for an agency, a buyer or realtor should vet the agency issuing the title commitment and verify that they are in good standing by obtaining that verification from the insurer. There is a universal ID that the American Land Title Association (ALTA) maintains and will verify an agency’s legitimacy. The insurer can also be contacted directly to verify their legitimacy. Phone numbers for the insurer are typically on the commitments or an online verification may be available at the insurer’s website.
During a cash transaction, it is important to obtain a commitment to issue a policy from a reputable title agency or insurer as soon as possible. Receipt should provide an opportunity under the contract for purchase and sale to review and make objections – although there is usually a time limit. However, obtaining it right before closing does not allow time to object to an unacceptable defect.
To Buy or Not to Buy Title Insurance
It is not a requirement under the law that a cash buyer procures title insurance, so they can choose not to obtain it. However, there is no circumstance where skipping title insurance would be a good idea. Plus, with it being a relatively minor investment in the most expensive of jurisdictions, having the security that a thorough title review provides is more than worth the cost. You simply cannot put a price on peace of mind, and having a valid title policy is a great way to protect your all-cash investment.
You can’t go wrong being educated, prepared, and mindful.
When writing about quality commitments we have two main goals: quality and excellence. Basically, we want to be sure we are producing superior commitments and policies.
But who decides whether or not we’ve attained these goals? The first answer is our underwriters. They’ll be looking to ensure that the quality commitment is written in a clear and unambiguous fashion so that all parties involved can easily see what’s covered by the policy and what isn’t.
Next up are the regulators. In my state of Texas, everything surrounding title insurance is regulated by the state, and the Texas Department of Insurance (TDI) routinely runs quality checks during audits.
However, our customers are the ultimate and most important judge of any of our business dealings, and it is up to us to ensure that the commitment for title insurance makes them feel reassured and enlightened rather than frustrated and confused. Buyers and lenders are looking for exceptions in a language that’s easy to understand, while owners want the language for requirements to be the clearest.
Let’s break down a commitment for title insurance. This step in the process comes after the receipt of a bona fide order and must be completed as soon as possible. The exception is when the company is unwilling to insure said order. In the event that the commitment is issued, liability and obligations end ninety days after the commitment’s start date.
When selecting the words to include in a commitment, it’s important to understand the distinction between language describing the insured land and language described as an exception from coverage. When describing an easement estate on Schedule A, we want the description to be as detailed as possible, because that limits liability. When describing an easement on Schedule B, we want to be as general as possible, because we limit our liability.
Requirements appear on Schedule C of commitments – and do not appear on policies. “Requirements” in this case reference items that must be resolved to the satisfaction of the underwriter before the policy can be issued. There may be instances when it’s necessary to tell a proposed insured something about the policy that will be issued. While there’s no standard way to give this type of information, the best practice would be to add a “note” – containing information. Remember, these “notes” are only used to include additional information about policies and never to provide information about the status of the title.
There are things that don’t belong on commitments. Some examples would be “affirmative” statements about what was found during the title search, instructions about how closing or escrow should be handled, information about transactions or policies outside of the outlined requirements, or details advising the insured about “rights of parties in possession” or amendments of the “area and boundary exception.”
With all of this information in mind, the question still remains: How do we achieve quality commitments and policies? The first step is education. Everyone in the organization must have appropriate training in the use of the escrow/closing and title production system(s). It’s critically important for each person to understand how the data they input is utilized by each process. The next step is the natural progression into preparation. Prep for quality starts with the setup process of the escrow/closing and the title production system.
At the end of the day, it’s about remaining mindful of the parties who will be reading your report or commitment and what it is they mean to do with it. If you go into the commitment process with that in mind and remain armed with the information you’ve gathered, you’re headed in the right direction.
Be educated in the process, be prepared for what you’re about to do, and be mindful of our clients and you can’t go wrong. If you would like to learn more about writing quality commitments, log onto our Alliant National Agent Resource Center and check out our Resource Center tab to view our new webinar on the topic.