Real estate is as HOT as the temperatures here in Texas. You hear of property selling before it is on the market. But don’t get in too big of a rush. What if you learned after you spent what is typically the largest expenditure in a person’s life, that your deed was not valid or that it was illegal? Think this could not happen to you? Well I am here to tell you it happens right here in Walker County, Texas. And if you are not careful, it could happen to you.
I have seen, right here in Walker County, people trying to convey property using an Earnest Money Contract as an instrument of conveyance. An Earnest Money Contract does not convey anything, even if it is filed for record. What is worse, the misinformed folks who used the Earnest Money Contract also attached an addendum for seller financing thinking it created some type of lien on the property protecting the seller’s interest. What this action did cause was what is called a “cloud on the title.”
Each year thousands of lawsuits are filed involving title problems. Many title problems can arise which cause the complete or partial loss of your home or business property. Even the most careful search of the public records will not find every title problem. Because some problems are hidden, your title may appear to be perfect when in fact there may be a problem that is a land mine waiting to explode.
Another common issue is an “illegal deed” because the transaction does not meet the guidelines for the governing entity. Normally, a surveyor would catch this, but if you do not hire a surveyor familiar with the local rules, this may go undetected. All surveys are not equal. If your survey does not include an abstract (research of the public records) to identify easements and matters that effect your property, then you may have been shorted. A proper survey should include an abstract of the public records and identify on the survey plat all easements of public record that effect the property as well as setback lines and structures that are on the property.
Owner’s title insurance protects you against financial loss caused by covered title risks. The title insurer, without expense to you, will defend you against an attack on the title to your property as insured. If the attack is successful, the title insurer will indemnify you against the defined financial loss up to the policy limit. A small, one-time premium provides you with this valuable protection.
To give you an idea of the types of title problems that may occur, I have compiled this list of “Land Mines” that could result in partial or complete loss of your property or an expensive lawsuit.
- Property still held by a deceased owner whose interest has not been properly conveyed to the surviving heirs.
- Inadequate legal descriptions.
- Defective acknowledgments.
- Mistakes in recording legal documents.
- Misinterpretation of Wills.
- Undisclosed or missing heirs.
- Deeds by minors.
- Surviving children omitted from a Will.
- Marital rights of spouse allegedly, but not legally, divorced.
- Deed of community property recited to be separate property.
- Instruments executed under fabricated, expired or not properly recorded powers of attorney.
- Birth or adoption of children after date of will.
- Pipeline or utility easements affecting the property.
- Easements established through continued use but not discovered by a survey or in the public record.
- Errors in indexing of legal documents by the County.
- Mistaken reports furnished from taxing authorities.
- Deeds to or from defunct corporations.
- Documents executed under duress.
- Errors in tax records. (For example, listing payment against wrong property account.)
- Forged deeds, releases, or other instruments.
- Deeds by persons supposedly single but secretly married.
- Deeds from persons not competent to handle their affairs.
Problems like these listed above, and many more, happen every day. Because we assist clients with real estate matters, we see these issues quite often.
An uncovered “Land Mine” could result in an expensive lawsuit. A title insurance policy insures that these matters have been diligently researched and addressed before closing the transaction. You should understand there are different types of title insurance policies and different coverages and exemptions. The type of policy you receive and the exemptions determine what protections you have. If you received title insurance coverage when you purchased your property, then you should have peace of mind your investment is safe and if a “Land Mine” should arise, you will have a solution.
Buying or selling a home or real property, is often the largest single investment a person or couple makes. Therefore, you should seek the assistance of a real estate agent, attorney and title company familiar with your jurisdiction’s requirements before making your investment.
Sam A. Moak is an attorney with the Huntsville law firm of Moak & Moak, P.C. He is licensed to practice in all fields of law by the Supreme Court of Texas, is a Member of the State Bar College, and is a member of the Real Estate, Probate and Trust Law Section of the State Bar of Texas. www.moakandmoak.com