Taking Title

By Garrett Sutton, Esq.

Title to real estate sounds grand. As you think of titles let your mind wander back again to medieval England when titles such as Baron and Duke meant you were part of the nobility and peerage system. And not coincidentally, if you had such a title you also owned land. As our legal systems evolved, real estate title–the means by which you owned valuable property rights – remained ever so important. Because title conveyed power (and with power came corruption and fraud), a system to accurately record the chain of title developed. Over time you had to defend your title with the proper paperwork. The ‘checking system’ that evolved means that there are two steps for the transfer of title.The first step is the granting of a deed whereby the grantor transfers the property to the grantee. An investigation of the sequence of deeds to establish an accurate chain of title is then performed. If the grantor actually has clear title, according to the public records, a policy of title insurance may be issued and the property transferred. (Please note that property can be transferred without title insurance but that most banks won’t take the risk in making a loan without it.)A noticeable break in the chain of title means that the buyer–even though they believe they are the rightful owner–can be subject to the possible claims of others contesting the title. It can also mean that the property is now very difficult to sell, because future potential purchasers don’t want any doubts about clear title.

Accordingly, title insurance is important. Before insuring you against the risk of future claimants, a title company is going to check the public records to see if there are any troubling gaps in the chain of title. If gaps exist they won’t issue a title insurance policy. If they won’t issue a policy you won’t buy the property. It is that simple. Follow their lead. Transferring Title

The specter of title insurance affects the way you will transfer title to property.

There are two ways to transfer title:

1. a grant Deed. this deed (or ‘Warranty Deed’) implies or warrants that:

a. The Grantor (the person granting the property) has not transferred the property before, and that absolute ownership (‘free and clear’ title) is conveyed.

b. Unless the Grantee (the person receiving the property) agrees otherwise, the property is free from any liens or encumbrances against it.

c. Any after-acquired title (ownership that goes to a Grantor later) is also conveyed to the Grantee.

2. a quit Claim. this much weaker deed only:

a. Transfers whatever present right, title or interest the transferor may have. (If the transferor doesn’t have any rights, neither do you.)

b. No warranties are made as to any liens or encumbrances. (So if there are undisclosed mortgages against the property it’s not the transferor’s problem – as it is in a grant deed. Instead, it is now your problem.)

c. No after acquired title is transferred.While often advocated by promoters as the easiest means for transfer, the quit claim deed is not your best choice. First, know that in many bank involved ReO (real estate owned) transactions the ReO lender selling a foreclosed property will only use a Quit Claim deed.

Why is this?

It is because the lender has no idea what happened on the property prior to foreclosure. During the boom documents were not properly kept or transferred, the banking industry’s MeRS electronic recording system failed to keep up with it all, and many documents were just plain lost. This is no way to maintain a good chain of title on the nation’s real estate.

It was so bad in 2009 that a large national title company announced it would no longer issue title policies to two large national banks. These lenders’ records were just not trustworthy, and the title company was not going to take the risk. Know that for years to come there are going to be title issues arising from the real estate collapse in 2008.

It is for this reason that sellers (mainly banks) of foreclosure properties are using quit claim deeds. They don’t know what happened and they aren’t about to warrant or guarantee that they have a clean title to convey to you. The quit claim deed they use instead says, “We don’t know what we’ve got but whatever we’ve got we’re giving to you.”

What is offensive is the lengths that some of these lenders will go to get you to bite on a quit claim deed. They will tell you that it grants you full rights to the property. It doesn’t, because neither you nor the bank really knows what those rights are.

To further get themselves off the hook after taking your money for the property these banks will bury the fact that they don’t warrant good title in an Addendum at the end of a sixty page contract. They want you to waive any rights you may have in the matter. They may or may not know that the title is so defective that the property will be severely devalued. But they want you to release them from any future problems and sign off that everything is okay. There have been reported cases where the Addendum is intentionally withheld and only provided to you at the closing. (You know, at that last meeting at the title office where you are expected to sign 47 documents without reading them.) Accordingly, please be very careful and have your own attorney review such transactions.

The second reason a quit claim deed is not preferred is because the quit claim deed severs an express or implied warranty of title. (Remember, you are just granting whatever you may own which may be something, or nothing.) As such, the title insurance doesn’t follow. While this may not seem like a big deal, let’s consider an example.

You buy a property in your name. Part of your closing costs includes a policy of title insurance. Several years later you want to transfer title to an LLC for asset protection. Your friend says a quit claim deed is the easiest and quickest way to go. You file the quit claim deed and now the property is titled in the name of your LLC. Later, you learn that the boundaries weren’t properly surveyed. You seek recourse from the title company since they insured the boundaries were correct. But you now learn that by quit claiming the property into your LLC you have unwittingly cancelled your title insurance policy. The boundary issue is no longer insured.

The way to avoid this problem is to use a grant deed or a warranty deed. A title insurance policy isn’t extinguished in such a transfer. As well, a grant deed is just as easy to prepare as is a quit claim deed. But in either case, remember that easy isn’t always best. If you are not an expert at title transfers, I would have a lawyer or title company handle them.

For more information on this and other title matters, please read my book Loopholes of Real Estate or visit: www.CorporateDirect.com