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.
Title insurance agents face waves of continuous technological evolutions, all designed to ease the agent’s work, but which can be glitchy enough to tempt title agents to abandon new protocols in favor of old habits.
Technology shows up in our work lives in several ways. For example, the options below are but an “initial round-up” (if you will) of many title agent’s interactions with technology:
Production Software – Often used by title agents to manage files, create documents and commitments, handle disbursements, communicate and share information with clients.
Electronic Records – While still not yet available in every county or title plant, most urban areas now have electronic records. Title professionals no longer have to drive to a set location to research property records. They can do research from a computer anywhere with an internet connection.
E-Recordings – Rather than taking the original documents to the County Register of Deeds to be put of record, recordings can be submitted online through various providers.
E-Signatures – E- Notaries/RON (remote online notarization) – This a rapidly evolving space and can be a major convenience for consumers and increase productivity for title agents.
Smart Contracts – SC’s are just beginning to become a reality. Self-executing contracts that follow an “if-this-then-that” protocol can streamline workflow and reduce errors.
Social Media – A powerful and ubiquitous vehicle that aids marketing and relationship efforts.
Technology is now a part of everything we do, and most every title agent recognizes the benefits of adopting some form of technology. Moving forward, technology is helping mitigate risks like wire fraud while helping us run more efficient businesses.
There can be a bit of tug-of-war over the adoption of new technology. The over 50-year-old work population has had to learn new technologies as adults, while Millennials grew up in the face of ever-evolving technology options, and the up-and-coming Generation Z has never known a life without the Internet.
Those from older generations have witnessed methods that were once industry best practices become obsolete in a brave new, technological world. In some cases, entire industries have had to evolve or risk becoming obsolete themselves.
The truth is the title insurance industry is behind, technologically speaking. Title insurance operates much like the check at the grocery store; although the check may remain an option for some time yet, it is not now, nor will it ever again be the dominate method of payment.
Yet our industry has been slow to adapt and embrace new technologies. Those who would drag their feet cite concerns about emerging technology, the validity of it and what the implications could be in the result of certain claims. These are valid concerns.
But a continued resistance is creating opportunity for those outside our industry to change it for us.
While the use of new technology does open doors to risk of claims or risk of being unintentionally negligent could increase, the waves of disruption don’t look to be letting up anytime soon.
To remain relevant, title agents must get on board and move full steam ahead.