Protecting Your Home Investment Against Unknown Title Defects
If you borrow money to buy a home or property, a lending institution will probably make you buy a title insurance policy to protect its interest. As a consumer, it's in your best interest to be well-informed about title insurance, how it works, and what to look for in title insurance.
What is Title Insurance?
Title insurance helps provide home buyers and/or mortgage lenders protection against losses resulting from unknown defects in the title to your property that existed before the closing of a real estate transaction.
Those unknown "deficits" could be:
outstanding liens on the property (e.g., unpaid real estate taxes by a prior owner)
encumbrances (anything that might hinder the owner's right of ownership; e.g., errors or omissions in deeds),
undisclosed errors, fraud, forgery, mistakes in examining records
These deficits can result in additional costs in the future or even invalidate a home buyer's right of ownership in the property. They might also invalidate the lender's security interest in the policy. Title insurance policies cover the insured party for any covered losses and legal fees that might arise out of such problems.
What Do Title Insurance Agents/Companies Do?
Title insurance agents/companies search public records to develop and document the chain of ownership of a property. If any liens or encumbrances are found, the title company might require a home buyer to eliminate them before issuing a title policy. Title insurance agents might also hold money in escrow and perform closing services for an additional fee.
How Does Title Insurance Work?
Title insurance policies are indemnity policies that typically protect against losses arising from events that occur before the date of the policy, which is the date of closing. This is different from other types of insurance policies, such as auto or life insurance, which protect against losses resulting from accidents or events that occur after the policy is issued. A title policy is usually paid for with a one-time premium that is handled at the closing of the real estate transaction.
Who Needs Title Insurance?
Lenders If a mortgage is obtained in order to purchase property, nearly all lenders require that a home buyer purchase the lender's title insurance policy for an amount equal to the loan. A lender's policy is issued to a mortgage lender. The policy gives the lender protection from covered losses arising from any defects in the title that have become known only after the insured property has been financed. The lender's insurance policy will remains in effect until the amount financed has been repaid or the property is resold or refinanced.
Owners Either a home seller or home buyer may buy an owner's policy. In many areas, sellers pay for owner title policies as part of their obligation in the transfer of title to the home buyer. The question of who pays for the owner's policy can be negotiated as part of a purchase agreement.
An owner's policy is issued to a home buyer. It protects the buyer from covered losses arising from any unknown defects in the title that existed before the purchase which become known only after ownership of the property is acquired. Your owner's policy remains in effect as long as you own or maintain an ownership interest in the insured property.
Marketing and Sales Practices
Although home buyers are free to shop around for a title agent or a title insurer, many home buyers do not. Because buyers are unfamiliar with title insurance, they tend to let lenders and/or real estate professionals who are parties to the home buying transaction make that decision.
Conflicts of interest can occur if the entities making the decision have a financial interest in a title agency/title company. Section 8 of the federal Real Estate Settlement Procedures Act (RESPA) prohibits people involved in a real estate settlement process from giving or accepting kickbacks or referral fees.
Key Points to Remember
Although a title insurance company will most likely be offered to you during the mortgage transaction process, you are not obligated to use it.
Be sure to ask what services and fees are included in the title insurance premium and any fees (e.g., cost of search and examination, closing services, etc.) that may be billed to you separately.
A lender policy only covers a lender's loss. It does not protect a home buyer from losses arising from defects in title. Talk with a local, reputable real estate attorney not involved in the real estate transaction to find out if it is in your best interest to purchase an owner's title insurance policy.
Make sure to ask about any available policy discounts. Premium discounts might be available if both owner's and lender's policies are purchased from the same title insurance company or if you are refinancing your loan. You might also ask about "reissue" or "substitution" rates.
Read all title insurance documents you get at closing, including the fine print. Ask questions if any items are unclear; or if any terms, conditions or amounts are not in line with something you may have been told before closing.
If you believe that a title/closing agent or title company in a real estate closing/settlement transaction is not following standard business practices (e.g., unexpected or undocumented fees, or requesting that you sign documents relating to the real estate or closing transaction that are not accurate), immediately report this to the Minnesota Department of Commerce.
The U.S. Department of Housing and Urban Development Web page http://www.hud.gov/ is a good source of additional information about title insurance.