Monthly Archives: November 2013
There is a big difference between a title search and a policy of title insurance. Both products should (hopefully) disclose an accurate picture of the state of title. However, should there be an error or omission in the search, only one of these products provides immediate recourse and assistance under a title guarantee. Under a title insurance policy’s “duty to defend”, if an insured’s title is challenged the title insurer has a duty to pay for legal expenses involved in defending the insured’s title. Purchasing a title search, on the other hand, is really just the purchasing of the services of a title examiner to go out to the courthouse and report back with information. The information retrieved is usually much of the same information that a title insurance agent would use in the course of conducting its due diligence in preparation for issuing a title insurance policy. The biggest difference in this regard then is that by purchasing title insurance, you have not only ascertained the state of your title, but you also have an insurance policy that guarantees that status to you. This insurance policy carries with it not just a contractual assurance of title but it also provides immediate recourse to the claims department resources of a title insurance company. If you are a homeowner who has purchased title insurance and you discover that a lien is encumbering your property that was not disclosed, and by extension, not excepted from the coverage of your title insurance policy, you can simply notify your title insurer of the title claim and the insurer will handle it from there. If the matter does indeed amount to a title claim, the title insurer will assign an approved, vetted attorney with the relevant experience to defend your title. It is for these reasons that when you buy a home, institutional lenders require title insurance to guaranty the priority of their mortgage in the chain of title. To investors who may purchase the mortgage after you close on your home, it is very important that those mortgages be properly secured and for the lender to have recourse to an identifiable company that is regulated and that has been required to pay a portion of its revenue into a claims reserve. These protections are not part of a simple title search.
During the course of a divorce, even an amicable one, the state of title to your real estate may not be the first thing on your mind. There are many things to consider during a divorce but this is one area that really should not be overlooked. Here’s why…
Although you and your spouse are surely looking at how to equitably divide the marital assets and debts, your real estate could blur the line between them. Suppose, for instance, that your home is titled in you and your spouse’s name. Judgments, mechanic’s liens, fines etc. owed by one spouse can encumber jointly owned real estate. Ordering a title search or instructing your attorney to do so will give you the information you need as to the status of your title. Yes, it is an additional expense but it will save you a lot of money in the long run. Any title problems that arise can be addressed and resolved before your divorce is finalized so there are no surprises afterwards.