HOW TO PROTECT AGAINST HIDDEN TITLE PROBLEMS

There are many title issues that can arise to cause the loss of real property and associated investment and/or the incurring of significant legal expenses. The sad reality is that there are various title problems that are NOT readily disclosed by the most careful search of the public land records. These defects are often called “hidden hazards” or “latent title defects” and they can be very most dangerous to real estate investors who (1) conduct their own title examinations or (2) try to “save money” and not purchase owner’s title insurance since they plan on flipping the property in short order. These practices are an example of being penny wise and pound foolish. Because of these latent defects, even when proper precautions are taken, title commitments and related title notes may be “perfect,” but title could nonetheless be severely impaired.
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The best and most feasible way to protect against the potentially horrific consequences of these latent defects is to ALWAYS purchase an owner’s title insurance policy. An owners’ title insurance policy protects the investor as well as his/her heirs from financial loss caused by title problems. Even if a title claim proves to be without merit, an owner’s title policy is valuable because the title insurer, without expense to the landowner, will defend against any attack on the title to the insured property as insured. Such defense costs can run into large sums quickly inasmuch as the typical hourly rate for attorneys can be $250.00 and hour and more. Should the worse case scenario prove true and title is significantly impaired, the title insurer will pay to correct title or reimburse the policy holder up to the limits of the policy coverage. Thus, the one-time premium for an owner’s title policy is small in relative monetary terms while the protection is great.
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Here are some of the hidden title problems that can occur. You may not discover them when buying real estate but months or years later, they can result in the loss of investment property or an expensive lawsuit.
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1. False impersonation of the true owner of the land.
2. Forged signatures on deed, releases, etc.
3. Instruments executed under fabricated or expired power of attorney.
4. Deed delivered after death of grantor or grantee or without consent of the grantor.
5. Deeds to or from defunct corporations.
6. Undisclosed or missing heirs.
7. Misinterpretation of wills.
8. Deeds by persons of unsound mind.
9. Deeds by minors.
10. Deeds by aliens (foreign nationals).
11. Deeds by persons supposedly single but secretly married.
12. Birth or adoption of children after the date of a will.
13. Surviving children omitted from a will or affidavit of heirship.
14. Mistakes in recording legal documents.
15. Want of jurisdiction of persons in judicial proceedings.
16. Later discovery of will of apparent intestate decedent.
17. Courthouse errors in indexing resulting in missed deeds and instruments.
18. Intentional falsification of records.
19. Capacity of foreign fiduciaries of trusts or estates.
20. Claims of creditors against property sold by heirs or devisees.
21. Deeds in lieu of foreclosure given under duress.
22. Ultra vires deed given under false corporate resolution
23. Easement by prescription not discovered by survey.
24. Deed of marital property recited to be separate property.
25. Errors in tax records. (e.g., listing payment against wrong property).
26. Federal condemnation of property without filing a notice.
27. Descriptions not actually adequate (e.g., the boundaries do not close).
28. Erroneous reports furnished by tax officials.
29. Administration of estates of persons absent by not actually deceased.
30. Undisclosed divorce of spouse who conveys as consort’s heir.
31. Marital rights of spouse purportedly, but not legally, divorced.
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Having an owner’s title policy provides other practical benefits to real estate investors. If owner’s title insurance is purchased, subsequently identified liens and title defects that arose prior to the policy date but that were not listed as exceptions on Schedule B to the policy will be covered by the policy and the insuring title insurance company will cure the defect or, in the case of total title failure, pay the investor up to the face amount of the policy. In addition, if the ultimate purchaser of a rehabbed property utilizes a different title insurer for their purchase than the one used by the rehabber/investor, frequently the investor who bought an owner’s policy can get still an indemnification from his/her title insurer so that the defect can be insured over by the new title insurance company. Without an owner’s policy, such indemnification is NOT available.

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Best Solution: Use an experienced real estate attorney, obtain a title commitment from an experienced and reputable title insurance company, AND purchase owner’s title insurance. It is ALWAYS crucial that a title exam be conducted to identify (A) all mortgages that attach to the property, (B) any state or federal tax liens that may attach to the property, and (C) any other judgment liens that may attach to the property. This latter category of judgments can relate to unpaid medical bills, defaulted credit card accounts, unpaid utility bills, or even delinquent child support payments. If an investor closes on a purchase without making sure that all previously attaching liens and judgments have been satisfied or confirmed to not apply to the property, they will be a title defect at the time the rehabbed property is sold.

DESCRIPTION OF REAL ESTATE INVESTOR FORMS AND EDUCATION ARTICLES

35 TITLE PROBLEMS This article summarizes some of the “latent defects” that can exist in the chain of title to property that often cannot be detected, no matter how thorough the title examination. Hence, why purchasing an owners title insurance policy is always a wise investment.
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AGREEMENT OF SALE – Acreage. This form should be used when purchasing undeveloped acreage for development. The form contains an optional provision where the price can be reduced if the actual useable acreage is less than listed, with actual useable acreage being determined via survey.
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ASSET PROTECTION TOOLS FOR THE REAL ESTATE INVESTOR. This article looks at methods that can be employed to protect real estate investment assets as well as limiting one’s personal liability for claims and lawsuits arising out of real estate investment property.
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ASSIGNMENT OF CONTRACT This form should be utilized for a simple assignment of a contract to another party without any assignment fee. For example, if a contract is executed in one’s individual name, this form may be utilized to assign the contract to a related limited liability company.
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AVOIDING BEGINNER INVESTOR PITFALLS. This article describes common issues and problems encountered by first time investors, particularly where properties are located in older neighborhoods – e.g., zoning issues, non-conforming lots and/or uses, and title issues - and explains (1) how the problems can be avoided or (2) once the problem has been encountered, how it can be corrected.
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BASIC STEPS AND CONSIDERATIONS FOR A SECTION 1031 EXCHANGE. This article summarizes of the steps involved in a 1031 exchange and provides a preliminary overview. It does not address all issues involved in a 1031 exchange and is not meant to replace the requirement that a would be exchanger should always review the entire transaction with tax and/or legal advisors
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CHOOSING AN ENTITY TYPE. This article looks at and compares the three types of legal entities most generally utilized to limit real estate investor liability: a Sub-Chapter S corporation, a limited liability company (“LLC”), or a limited partnership (“LP”). Each has certain advantages and disadvantages.
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CONTRACT ASSIGNMENT – WHOLESALE. This form is used when an investor is wholesaling a purchase contract for an assignment fee and does NOT intend to do a double closing. The form allows the assigning investor to be paid and then the assignee completes the contract transaction with the seller of the property.
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CONTRACT TO PURCHASE REAL ESTATE. This is a short, stripped down purchase agreement that may be used by investors looking to acquire property. NOTE: the form contemplates the property being conveyed in “AS IS” condition, but has inspection and financing contingencies for the benefit of the buyer.
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CONTRACT TO SELL REAL ESTATE. This is a short, stripped down sale agreement that may be used by investors looking to sell property. NOTE: the form contemplates the property being conveyed in “AS IS” condition, but has inspection contingencies for the benefit of the buyer.
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DEED OF TRUST NOTE - Hard Money. This form should be utilized for hard money loan transactions where there are no monthly payments and a single balloon payment of principal and interest on the maturity date. The form includes an optional extension provision where the extension fee is added to the balance owed at maturity.
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DEED OF TRUST – Hard Money. This form should be utilized to secure a hard money loan by way of a deed of trust on the property being acquired and/or rehabbed. In the event interest will be charged over and above the points or loan fee, they should be added to the terms of the accompanying Deed of Trust Note.
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EQUITY SHARING AGREEMENT. This form should be used when title to real estate is to be placed in only one partner’s name for whatever reason and the parties wish to establish the basis for the other partner to share in the equity in the property in the event it is sold or the partnership is discontinued.

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ESCROW AGREEMENT. This form should be utilized when funds are to be placed in escrow pending the completion of repairs or delivery of clear reports, etc. The release instructions must be customized to the specifics of the particular situation.
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FIVE DAY PAY OR QUIT LETTER This form is used to give notice to a tenant that they have five days in which to pay delinquent rent or else eviction proceedings will be instituted. Duplicate originals of the letter should be sent by certified and regular mail (some tenants may refuse the certified mailing). A copy of this letter should be retained for presentation to the Court in an eviction proceeding.
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FIVE DAY NOTICE TO QUIT LETTER This form is used to give notice to a tenant that they have defaulted in rent and that the default is NOT being waived by the Landlord. Therefore, the tenant must vacate the premises or else eviction proceedings will be instituted. Duplicate originals of the letter should be sent by certified and regular mail (some tenants may refuse the certified mailing). A copy of this letter should be retained for presentation to the Court in an eviction proceeding.
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FOR SALE BY OWNER PURCHASE AGREEMENT. This form provides a comprehensive contract for the sale of real property when no realtor is involved. The form approximates the local multiple listing contract form and covers items required when the purchaser is a consumer intending to occupy the property.
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INVESTOR ACQUISITION OF REAL PROPERTY – CHECK LIST. This form is a checklist to be used by investors purchasing property in order to make sure all applicable due diligence issues and items are properly examined. Not every transaction will involve all of the listed items.
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LAND SALE AGREEMENT. This form is utilized when the purchase of real estate is to be accomplished via an installment sale transaction, with record title remaining vested in the seller until such time as the total purchase price has been paid. The form includes a form of deed to be held in escrow pending the transfer of title as well as a contract termination form for use if the sale is not completed.
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LEASE WITH OPTION TO PURCHASE This form is similar to the Residential Lease Agreement except it contains an option to purchase in favor of the tenant within the lease itself. In addition, it has an optional provision where a portion of the monthly rental can be placed into an escrow account in order to allow the tenant to build up a down payment to be utilized when the purchase option is exercised.
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LOAN CALCULATION FORM. This form provides a check list of costs to assist in determining (1) the total rehab costs, required loan amounts, and (3) possible profit margin.
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OPTION TO PURCHASE AGREEMENT This form is used in conjunction with a separate, stand alone Lease Agreement when the Landlord desires to give the Tenant an option to purchase the leased premises.
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OVERVIEW OF CLOSING A PURCHASE TRANSACTION. This article provides a brief summary of the steps involved (and timetables involved) in processing and closing a typical residential purchase transaction by the attorney’s office overseeing and coordinating the closing transaction.
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PREPARING A SHORT SALE PACKAGE – This article provides step by step for preparing and negotiating a “short sale” – i.e., a reduced payoff balance – for borrowers who need to sell their home because they can no longer afford to keep the payments current and are experiencing financial hardship. From the lender’s perspective, a short sale saves many of the costs associated with the foreclosure process - attorney fee's, the eviction process, delays from borrower bankruptcy, damage to the property, costs associated with resale, etc. In a short sale scenario, the lender gets the cash from the property back faster, so it is able to cut its losses. Sample forms and letters are included.
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PROMISSORY NOTE - REVOLVING LINE. This form should be utilized when a private lender is providing a revolving line of credit to an investor engaged in one or more rehab operations where the borrower can borrow, repay and re-borrow against the line of credit
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PROMISSORY NOTE – (Unsecured). This form of note is NOT secured by a deed of trust and provides for a final balloon payment on a specified maturity date or upon the sale of designated property, whichever is the first to occur.
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REAL ESTATE CLOSINGS A-Z – This article provides a step by step overview of closing a residential real estate transaction and includes sample forms.

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REQUIREMENTS FOR DOCUMENTS TO BE IN RECORDABLE FORM. This document sets out the requirements for documents to be in proper recordable form in Virginia as on July, 2007. Documents that do not meet these requirements will be rejected by the Clerk’s Office.
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RESIDENTIAL LEASE AGREEMENT This form is a standard residential lease form that leaves the bulk of maintenance obligations on the Landlord other than yard maintenance and interior cleaning and maintenance of plumbing. It should be used in rental transactions involving single family or condominium rentals.

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RESIDENTIAL SHARED PROPERTY LEASE AGREEMENT (Owner). This form is to be utilized by an owner when leasing a portion of a residential property to tenants. It is NOT intended for use when a tenant is subletting property.
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SUBJECT TO CONTRACT TO PURCHASE. This form is a comprehensive purchase agreement for use where the existing first mortgage lien will remain outstanding. The form also contains an optional repurchase option in favor of the seller. Note: It is the preferred practice to have the seller execute a separate option to repurchase document.
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SUBJECT TO SELLER FORMS. These forms are the minimum that should be required for execution by the seller on a subject to purchase transaction. It is absolutely essential that the seller (1) confirm that they acknowledge that the mortgage loan will continue to be out standing in their name and (2) that the purchaser has no immediate duty to pay off said loan.

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THE POWER OF "SUBJECT TO" REAL ESTATE TRANSACTIONS – An overview of the advantages and pitfalls of a “subject to” transaction where the selling homeowner is still liable for the mortgage, but the investor/purchaser has (A) assisted by curing any delinquencies and reinstating the loan in return for a deed to the property, and (B) agreed to make the mortgage payments for the seller. Depending on the circumstances, the investor may (or may not) renovate the property, and then sell or lease it at a substantial profit.

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UNDERSTANDING THE FORECLOSURE PROCESS. This article explains the foreclosure process in Virginia and states where foreclosures are accomplished without judicial action. The article also discusses certain pit falls that can entangle unwary purchasers at foreclosure sales, including but not limited to title defects and unanticipated property condition.
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WAIVER OF LIENS – VIRGINIA. This form is a lien waiver form that should be required from each subcontractor in order to release potential mechanics’ lien claims for work and labor completed up through the payment date.
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WAIVER OF SERVICEMEMBERS CIVIL RELIEF ACT Landlords should have this form signed by tenants in the military in order to secure the waiver of certain rights under the Service Members Civil Relief Act which can significantly impede attempts to collect delinquent rent and/or possession of the leased premises.
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“WRAP” DEED OF TRUST. This form is utilized where a seller is selling property and leaving the current deed of trust in place and desires to retain control over payments to the first mortgage lienholder. Thus, the form provides for a second deed of trust which “wraps” around the first mortgage and provides for the buyer to make payments to the seller who in turn makes the payments on the first mortgage.
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COMMERCIAL REAL ESTATE FORMS AND ARTICLES

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AGREEMENT OF SALE (Buyer Form) - This form is utilized by a purchaser of commercial property and is focused on providing maximum due diligence investigation, extensive seller representations and warranties, and maximum options for the purchaser to terminate the transaction without liability.
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AGREEMENT OF SALE (Seller Form) - This form is utilized by a seller of commercial property and is focused on providing reduced due diligence investigation, minimum acceptable seller representations and warranties, and reduced options for the purchaser to terminate the transaction without liability.
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APARTMENT FACILITY PURCHASE AGREEMENT This form sets out a straightforward template for preparing a contract to purchase a medium to large multifamily apartment facility and includes provisions for proper due diligence investigations. Additional representations and warranties by the seller can be added on an as needed basis to reflect circumstances particular to property.
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FUNDAMENTALS OF REAL ESTATE DEVELOPMENT – a step by step analysis of how to undertake a commercial real estate transaction/development process. Sample forms are included.
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OPTION AGREEMENT. An option agreement provides (i) a payment by the buyer for the right to elect to purchase the real property on or before the expiration of a specified time period, (ii) sets forth the terms of purchase transaction in the event the buyer exercises the option and elects proceed with the purchase transaction, and (iii) provisions for entry on the property for a range of due diligence inspections, and (iv) a time and place for settlement. Unlike a detailed purchase agreement, an option agreement does not need to set forth the buyer’s due diligence contingencies inasmuch as the buyer can simply elect not to exercise the option if any due diligence inspections prove unsatisfactory.
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NON-CONVENTIONAL FINANCING OPTIONS FOR MULTIFAMILY AND ELDERLY HOUSING PROJECTS – This article reviews tax exempt bond and/or low income housing tax credit financing for multifamily and senior housing facilities which allow developers/investors to (1) secure lower mortgage interest rates and/or (2) obtain a significant equity contribution to the project thereby reducing the amount of equity that must be funded by the developer. These financing options lend themselves to either new construction multifamily or elderly housing projects or acquisition/rehabilitation projects for existing properties that require updating and remodeling.
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SAMPLE LETTER OF INTENT. This form should be used when an offer is being made to lay out the terms of a purchase transaction when the parties will, assuming a meeting of the minds occurs, have a more detailed agreement prepared.
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SMALL CONSTRUCTION PROJECT CONTRACT This contract template provides the basis for an owner oriented construction contract for a small to moderate construction project. For large projects, most lenders will seek to have an AIA form used as the basic template, together with an AIA form Architect Agreement.