In my last newsletter I referenced common title problems (Click HERE to read). One common title problem is definitely Open Loan Deeds, as noted. As a consumer, however, a "closed" account doesn't always mean the same thing as "cancelled" to a dirt lawyer. As an example, if you take out one purchase loan, the lender is in first lien position. If you have a second mortgage or Home Equity Line Of Credit (HELOC) taken out/recorded after that 1st mortgage, that loan is in second lien position. Quite often banks don’t cancel out the old loans once they get paid off (first OR second), but open/leftover HELOCs seem to be the more common problem.
For example, let’s say you closed a HELOC with a local bank for $25,000. You later increased the loan to $50K for some home repairs. Then it’s time for college so you raised it again to $75K. Finally, daughter is getting married so let’s just go for an even $100K (total line of credit, hopefully NOT the wedding bill!). Add all that up—even though the bank properly shows you only have an open line for $100K within their system, the public records will show (total) liens in the amount of $250,000 on their face IF they didn’t cancel each loan on the public records! SO we would need to contact the bank and work on obtaining releases or cancellations for EACH open loan (because every one of those HELOCs were secured by a Security Deed on the public records). Not every bank is this slack; I could name names but I’ll behave. At the end of the day, unless the bank has failed or been sold off, this can be somewhat simple. Sometimes (IF you have an owner’s title policy!) the Title Underwriter allows us to ‘insure over’ an open loan deed if it does not seem that they would have a valid claim against the title but that won’t work for HELOCs due to their revolving status so be vigilant!
Another HELOC example is that of the ‘free’ equity line offered at closing, back when houses actually had equity ("hey, you’ve just taken out a mortgage with us, do you want a small equity line as well, just in case?"). That’s great; so now you have a mortgage that you pay monthly, and you never draw any funds out of that equity line and it just sits there. When you go to sell your home, the attorney’s office asks for all your open loan info. Don’t fret; you’re not the only one who forgot about that 2nd loan—even if the balance is zero, all we need is a written payoff from the lender and they typically require a few dollars as junk fees to cancel out the loan on the public records. However, sometimes people want to keep that line open—if you’re selling the house, too bad. As it’s secured by the house, it has to be cancelled in the public records or you cannot transfer clear title to the new owner. At the end of the day, it's our job to make sure your title is clean so that there are no future title issues. We appreciate your business!
Showing posts with label deeds. Show all posts
Showing posts with label deeds. Show all posts
Thursday, August 14, 2014
Monday, April 21, 2014
Common Title Issues
When we sit down to close a transaction, hopefully it’s a very smooth and simple event. What ‘should’ happen is the review of a LOT of documents, tons of signing, initialing and some witty banter around the closing table. The concept of ‘all the attorney did was shove papers at me and said sign here’ is actually somewhat how a closing should be—however, hopefully all parties walk out of my closing with some semblance of understanding what just happened and what they signed! What you may not know is how much that actually happens behind the scenes prior to closing. One major thing that I have to do is clean titles. Let’s talk about common issues (and some NOT so common ones!).
Open Loan Deeds. Open loan deeds are the bane of closing attorneys’ existence! The role of the closing attorney is to convey clear title to the buyer and insure that the lender is in the proper ‘position’ as it relates to liens. If a loan was previously closed out but not cancelled in the public records, we have to ‘get rid of it’ and get in cancelled, released or obtain clearance from our title company that we can move forward. This topic will be covered in a follow-up newsletter, but suffice it to say that this issue creates a lot of confusion with clients! As an example, you know, the bank knows, and even I know that a loan was closed out in the bank’s system—but regardless of that fact, if it’s open in the public records, it is not ‘closed’ for title purposes and we must clean it up prior to closing.
Tax Liens. Ah, death and taxes… If you don’t pay your property taxes the county gets fussy. They will file tax liens on your property and can even SELL the property in a tax sale. We have to get proper written payoffs and pay any liens to clear the title. Usually this is a simple situation; it’s a bit more work if the taxes have been sold to a collector. If you have Federal or State income tax liens, we MUST get a payoff from the proper Federal or State agency. Tax liens (both property and income) don’t ‘go away’ and have to be cleared.
HOA or Condo liens. What if you have a Homeowner’s Association and you owe them money? We have to get payoffs from that HOA. If it’s professionally managed, that can be a simple call or email. If you have to call Fred the treasurer, as long as someone can find out how to reach Fred (and if he calls back) then we can obtain a payoff or release. That can be troublesome at times.
Contractor’s liens. So you added on a bathroom and you didn’t pay the contractor. Guess what? They can slap a lien on your house! The good news for most owners is that the lien process is VERY detailed and if they screw it up, the lien is not valid. So pay your contractors on time and you shouldn’t have to worry! If not, then we’ll have to get a written payoff as well.
Divorce or other legal proceedings. These can be liens against property so we have to research to see confirm the status of any lawsuit. As long as something is ‘open’ we have to more or less ask ‘permission’ to close (ditto for Probate and Bankruptcy situations).
These are just a few items that we deal with on a daily basis, though it seems like new 'stuff' shows up every day! Even after 20 years, I am surprised to learn something new more often than you'd think. Someday I'll tell you about the gentleman refinancing who didn't own his condo... (it's a long story ; )
Open Loan Deeds. Open loan deeds are the bane of closing attorneys’ existence! The role of the closing attorney is to convey clear title to the buyer and insure that the lender is in the proper ‘position’ as it relates to liens. If a loan was previously closed out but not cancelled in the public records, we have to ‘get rid of it’ and get in cancelled, released or obtain clearance from our title company that we can move forward. This topic will be covered in a follow-up newsletter, but suffice it to say that this issue creates a lot of confusion with clients! As an example, you know, the bank knows, and even I know that a loan was closed out in the bank’s system—but regardless of that fact, if it’s open in the public records, it is not ‘closed’ for title purposes and we must clean it up prior to closing.
Tax Liens. Ah, death and taxes… If you don’t pay your property taxes the county gets fussy. They will file tax liens on your property and can even SELL the property in a tax sale. We have to get proper written payoffs and pay any liens to clear the title. Usually this is a simple situation; it’s a bit more work if the taxes have been sold to a collector. If you have Federal or State income tax liens, we MUST get a payoff from the proper Federal or State agency. Tax liens (both property and income) don’t ‘go away’ and have to be cleared.
HOA or Condo liens. What if you have a Homeowner’s Association and you owe them money? We have to get payoffs from that HOA. If it’s professionally managed, that can be a simple call or email. If you have to call Fred the treasurer, as long as someone can find out how to reach Fred (and if he calls back) then we can obtain a payoff or release. That can be troublesome at times.
Contractor’s liens. So you added on a bathroom and you didn’t pay the contractor. Guess what? They can slap a lien on your house! The good news for most owners is that the lien process is VERY detailed and if they screw it up, the lien is not valid. So pay your contractors on time and you shouldn’t have to worry! If not, then we’ll have to get a written payoff as well.
Divorce or other legal proceedings. These can be liens against property so we have to research to see confirm the status of any lawsuit. As long as something is ‘open’ we have to more or less ask ‘permission’ to close (ditto for Probate and Bankruptcy situations).
These are just a few items that we deal with on a daily basis, though it seems like new 'stuff' shows up every day! Even after 20 years, I am surprised to learn something new more often than you'd think. Someday I'll tell you about the gentleman refinancing who didn't own his condo... (it's a long story ; )
Monday, September 23, 2013
Deed is DONE!
The last time I wrote about deeds I discussed the different forms of deeds, such as Quit-Claim Deeds, Security Deeds and Warranty Deeds. To read “Doing the Deed” click HERE. This time I’m going to discuss several issues relating to deeds.
If you own a property by yourself, it’s solely in your name. That’s a simple concept; not much to understand about that. If you own a piece of property with someone else, the specific language in that deed is very important. Let’s say a property was conveyed to Sonny and Cher (note to anyone under 40: Google them). Yep, no question about it--Sonny and Cher own their property; that’s simple enough. BUT, like all my political rants about unintended consequences, if it’s just spelled out that Sonny and Cher are the owners (with no other special language) there could be issues lurking down the road. If you’re curious, that type of deed would be called “Tenants in Common”. Put that thought on hold and let’s try another scenario.
I won’t bore you with statutes and history but years ago the Georgia legislature created another deed concept called “Joint Tenants with Right of Survivorship”. That meant that if Sonny and Cher took title as Joint Tenants, they more or less owned the entire property together—however, if either one of them passed away, the title to the entire tract would pass to the other immediately as an operation of law.
The distinction for these two deed formats is specific to the language. As noted, the Joint Tenants deed passes title immediately upon the death of one of the Joint Tenants. Contrast that with Tenants in Common—picture a big line drawn through the property. With Tenants in Common each “Tenant” owns their “half”. So if Sonny died, Cher still owns her half but now Sonny’s estate owns the other half. This may or may not be a big deal—if Sonny has a will giving everything to Cher, then she gets the entire property just like the Joint Tenants deed. The difference? With the Joint Tenants deed, Cher would have received the property ‘automatically’ upon Sonny’s death. With the Tenants in Common, Cher has to Probate the Will through the Court system or Administer the estate if there was no will. Either process involving the court will cost money and time—something that Cher may not have depending on her situation. If she received the property through the Joint Tenancy deed, she can do what she needs immediately, no waiting!
Take a look at the deed to your own house. TYPICALLY attorneys will default to creating a Joint Tenants With Rights of Survivorship for closing OR they will give you the option. If that’s your intent, great, the JTWROS deed is a useful tool. Take a look at your parents’ deed—was it an older deed that just has both of their names (Tenants in Common) OR was it just in ONE of their names? Again, through the court system, a surviving spouse will ‘eventually’ be able to receive the property BUT why put up barriers that involve time and expense?
What if you own a vacation house with another family? If by mistake the lawyers used a JTWROS deed, then if Family Dad 1 dies then Family Dad 2 would own the complete property. Most likely that won’t be an issue (e.g. will Family Dad 2 effectively kick out the heirs of Family Dad 1? He could!) but we attorneys hear all sorts of horror stories (and even within families—it’s weird how money can induce craziness into families).
What about a ‘blended’ family? Take the Brady Bunch. If Mr. Brady wanted only HIS sons to receive his interest in his property, then Tenants in Common may be the way to go for him. That way Mrs. Brady would get her share and the sons would get theirs. However, there could be a LOT of issues that could come up so you really need to think things through and PLAN with both the deed and a well-crafted Will.
One final issue to discuss is Divorce. So Sonny and Cher hit a rough patch and decide to go their own way. In the divorce decree (the ‘road map’ to the divorce, more or less a contract telling what must happen) it says Sonny will deed the house to Cher, so he does. Now Cher owns the house, right? Here’s the classic “What if” situation—what if Sonny and Cher had a loan? Well, Cher may own the house, but BOTH Sonny and Cher are tied together through the loan. Actually, look at it this way—Sonny and Cher’s CREDIT is tied together through the loan. If Sonny wants to buy his own place, he may not be able to do so until Cher pays off that loan or refinances that loan ‘solo’ (e.g. Sonny is no longer on a loan tied to the old house). Again, a simple concept, but I get calls or emails all the time relating to this. More “what if’s” for you—now let’s say Cher stops paying the mortgage; obviously her credit is trashed and she may lose the house. BUT guess whose credit is also trashed? Sonny’s, because he is still on the loan! He may never know this until he is turned down for a Home Depot credit card or something much more important like his own loan or even a job!
On a similar note, what if Cher got the house and the divorce decree actually states clearly that Cher must refinance or sell the house to get Sonny’s interest released? That is a great idea and ANY divorce attorney should make sure that is in the decree (with time limits!). BUT (there’s always a but, right??)—what if the house is ‘upside down’ and cannot be sold or refinanced? These are serious concerns with no easy answer. I just want to point out some of these issues so that you can properly plan for the future should this event happen to you.
The moral of the story? You should get thee to the file cabinet, safety deposit box or simply contact your closing attorney and find out how you hold title to your property (and again, ask your parents, grandparents or kids, etc.). At a minimum it’s best to have both spouses on title and ‘in general’ it’s best to have a Joint Tenant With Rights of Survivorship Deed. As noted, everyone’s situation is different (I didn’t even touch on tax liabilities, which I’m not really qualified to do!) so start by looking at your deed and then consult your estate planning attorney, CPA and real estate attorney to do what’s right for you!
As always, if you find some generic deed online, you’ll probably get what you pay for (meanwhile, your home is merely your most important asset but what’s $50, eh?). Likewise, I saw a will creator program at my local warehouse club for $45. All I can say is this—you may be dead, but do you want to burden your family with a ‘what if’ that comes to life due to some wacky software glitch? Let me know how I can help, either a quick review of your deed and/or revision as well as helping to craft a simple will for you that’s in line with your current situation. I’d love to help serve you! Thanks as always for reading, take care! Bo
If you own a property by yourself, it’s solely in your name. That’s a simple concept; not much to understand about that. If you own a piece of property with someone else, the specific language in that deed is very important. Let’s say a property was conveyed to Sonny and Cher (note to anyone under 40: Google them). Yep, no question about it--Sonny and Cher own their property; that’s simple enough. BUT, like all my political rants about unintended consequences, if it’s just spelled out that Sonny and Cher are the owners (with no other special language) there could be issues lurking down the road. If you’re curious, that type of deed would be called “Tenants in Common”. Put that thought on hold and let’s try another scenario.
I won’t bore you with statutes and history but years ago the Georgia legislature created another deed concept called “Joint Tenants with Right of Survivorship”. That meant that if Sonny and Cher took title as Joint Tenants, they more or less owned the entire property together—however, if either one of them passed away, the title to the entire tract would pass to the other immediately as an operation of law.
The distinction for these two deed formats is specific to the language. As noted, the Joint Tenants deed passes title immediately upon the death of one of the Joint Tenants. Contrast that with Tenants in Common—picture a big line drawn through the property. With Tenants in Common each “Tenant” owns their “half”. So if Sonny died, Cher still owns her half but now Sonny’s estate owns the other half. This may or may not be a big deal—if Sonny has a will giving everything to Cher, then she gets the entire property just like the Joint Tenants deed. The difference? With the Joint Tenants deed, Cher would have received the property ‘automatically’ upon Sonny’s death. With the Tenants in Common, Cher has to Probate the Will through the Court system or Administer the estate if there was no will. Either process involving the court will cost money and time—something that Cher may not have depending on her situation. If she received the property through the Joint Tenancy deed, she can do what she needs immediately, no waiting!
Take a look at the deed to your own house. TYPICALLY attorneys will default to creating a Joint Tenants With Rights of Survivorship for closing OR they will give you the option. If that’s your intent, great, the JTWROS deed is a useful tool. Take a look at your parents’ deed—was it an older deed that just has both of their names (Tenants in Common) OR was it just in ONE of their names? Again, through the court system, a surviving spouse will ‘eventually’ be able to receive the property BUT why put up barriers that involve time and expense?
What if you own a vacation house with another family? If by mistake the lawyers used a JTWROS deed, then if Family Dad 1 dies then Family Dad 2 would own the complete property. Most likely that won’t be an issue (e.g. will Family Dad 2 effectively kick out the heirs of Family Dad 1? He could!) but we attorneys hear all sorts of horror stories (and even within families—it’s weird how money can induce craziness into families).
What about a ‘blended’ family? Take the Brady Bunch. If Mr. Brady wanted only HIS sons to receive his interest in his property, then Tenants in Common may be the way to go for him. That way Mrs. Brady would get her share and the sons would get theirs. However, there could be a LOT of issues that could come up so you really need to think things through and PLAN with both the deed and a well-crafted Will.
One final issue to discuss is Divorce. So Sonny and Cher hit a rough patch and decide to go their own way. In the divorce decree (the ‘road map’ to the divorce, more or less a contract telling what must happen) it says Sonny will deed the house to Cher, so he does. Now Cher owns the house, right? Here’s the classic “What if” situation—what if Sonny and Cher had a loan? Well, Cher may own the house, but BOTH Sonny and Cher are tied together through the loan. Actually, look at it this way—Sonny and Cher’s CREDIT is tied together through the loan. If Sonny wants to buy his own place, he may not be able to do so until Cher pays off that loan or refinances that loan ‘solo’ (e.g. Sonny is no longer on a loan tied to the old house). Again, a simple concept, but I get calls or emails all the time relating to this. More “what if’s” for you—now let’s say Cher stops paying the mortgage; obviously her credit is trashed and she may lose the house. BUT guess whose credit is also trashed? Sonny’s, because he is still on the loan! He may never know this until he is turned down for a Home Depot credit card or something much more important like his own loan or even a job!
On a similar note, what if Cher got the house and the divorce decree actually states clearly that Cher must refinance or sell the house to get Sonny’s interest released? That is a great idea and ANY divorce attorney should make sure that is in the decree (with time limits!). BUT (there’s always a but, right??)—what if the house is ‘upside down’ and cannot be sold or refinanced? These are serious concerns with no easy answer. I just want to point out some of these issues so that you can properly plan for the future should this event happen to you.
The moral of the story? You should get thee to the file cabinet, safety deposit box or simply contact your closing attorney and find out how you hold title to your property (and again, ask your parents, grandparents or kids, etc.). At a minimum it’s best to have both spouses on title and ‘in general’ it’s best to have a Joint Tenant With Rights of Survivorship Deed. As noted, everyone’s situation is different (I didn’t even touch on tax liabilities, which I’m not really qualified to do!) so start by looking at your deed and then consult your estate planning attorney, CPA and real estate attorney to do what’s right for you!
As always, if you find some generic deed online, you’ll probably get what you pay for (meanwhile, your home is merely your most important asset but what’s $50, eh?). Likewise, I saw a will creator program at my local warehouse club for $45. All I can say is this—you may be dead, but do you want to burden your family with a ‘what if’ that comes to life due to some wacky software glitch? Let me know how I can help, either a quick review of your deed and/or revision as well as helping to craft a simple will for you that’s in line with your current situation. I’d love to help serve you! Thanks as always for reading, take care! Bo
Friday, February 15, 2013
A quick refresher on how to title your property
This LINK should take you to a question asked online. It was answered by another real estate attorney and I added my thoughts as well. Between the two, this should give you some points to ponder re: how to title your home.
Have a great weekend! Bo
Have a great weekend! Bo
Friday, September 7, 2012
"Doing the deed"
In real estate, you hear the word ‘deed’ a lot but sometimes it’s not clear what is being referenced. A deed conveys or transfers property from one to another, be it an entity or an individual—that is consistent for all deeds. The key is what this deed actually SAYS. Sometimes the title of the deed is clear (like “Warranty Deed” at the top of the instrument), but that could be meaningless if the internal wording is incorrect or less than an absolute warranty of title. Let’s explain…
The ‘best’ deed is a Warranty Deed. If I transfer a property to you with that, I am warranting that I own it and can freely transfer it to you. I also give you a ‘warranty’ that I will help defend that clear title (thank goodness for Owner’s Title policies!). The ‘worst’ deed is a “Quit-Claim” deed (no it is NOT a quick-claim or quick deed!). The Quitclaim deed transfers ‘whatever I own’ to you. If I am the full owner of the property, great! That means you own whatever I ‘gave’ you. What if I don’t own it? Well, if I EVER take ownership of that property down the road, then that deed more or less finally kicks in (as an example, I can deed you the Golden Gate Bridge, but you didn’t get anything because I don’t currently own that beautiful piece of living history. BUT if I ever do (somehow) own it, guess what? At that point it’s yours!)
Interested in buying a foreclosed property? A Bank takes title to the property through a “Deed Under Power”, meaning they used their power of sale embedded in the Security Deed to ‘take back’ the property when the owner defaults. (A Security Deed transfers an ownership interest to the Bank in order to Secure their interest in the property—an analogy is a car title where you and the Bank own the secured item together). Now that the Bank owns the property, they will sell it to you using a “Limited Warranty Deed” (sometimes called a “Special Warranty Deed”). There is specific language in that deed noting that they warrant and guaranty the title to the property ONLY through their time of ownership ‘forward’ in time (in other words, “we only promise to defend any claims that showed up AFTER we obtained this property).
Next time I will talk about “issues” with deeds. When I am cleaning up titles, I find a lot of unintended consequences (incorrect names, incorrect descriptions, incorrect format, etc.). One thing I will say is that you are risking a lot when you use a deed you found on the internet or some cheap office-supply form. Isn’t the ownership of your home worth the $50-150 an attorney would charge to prepare that instrument? You will hopefully decide YES once you see the next newsletter…!
As a side note, I have received various “official” notices in the mail with a very strong call to action. This call to action virtually screams that I MUST contact them and get a copy of my property deed TODAY (oh, and send them $55-85 for this important service). Here’s the deal—if you have signed any deed of conveyance, the attorney who handled this should have mailed you the original. Can’t find it? No problem! Go to your county Clerk of Superior Court (property records division) and get a copy… for FIFTY CENTS. Yep, those ‘official’ notices are a scam—legal, but still an absolute scam. Be safe out there!
The ‘best’ deed is a Warranty Deed. If I transfer a property to you with that, I am warranting that I own it and can freely transfer it to you. I also give you a ‘warranty’ that I will help defend that clear title (thank goodness for Owner’s Title policies!). The ‘worst’ deed is a “Quit-Claim” deed (no it is NOT a quick-claim or quick deed!). The Quitclaim deed transfers ‘whatever I own’ to you. If I am the full owner of the property, great! That means you own whatever I ‘gave’ you. What if I don’t own it? Well, if I EVER take ownership of that property down the road, then that deed more or less finally kicks in (as an example, I can deed you the Golden Gate Bridge, but you didn’t get anything because I don’t currently own that beautiful piece of living history. BUT if I ever do (somehow) own it, guess what? At that point it’s yours!)
Interested in buying a foreclosed property? A Bank takes title to the property through a “Deed Under Power”, meaning they used their power of sale embedded in the Security Deed to ‘take back’ the property when the owner defaults. (A Security Deed transfers an ownership interest to the Bank in order to Secure their interest in the property—an analogy is a car title where you and the Bank own the secured item together). Now that the Bank owns the property, they will sell it to you using a “Limited Warranty Deed” (sometimes called a “Special Warranty Deed”). There is specific language in that deed noting that they warrant and guaranty the title to the property ONLY through their time of ownership ‘forward’ in time (in other words, “we only promise to defend any claims that showed up AFTER we obtained this property).
Next time I will talk about “issues” with deeds. When I am cleaning up titles, I find a lot of unintended consequences (incorrect names, incorrect descriptions, incorrect format, etc.). One thing I will say is that you are risking a lot when you use a deed you found on the internet or some cheap office-supply form. Isn’t the ownership of your home worth the $50-150 an attorney would charge to prepare that instrument? You will hopefully decide YES once you see the next newsletter…!
As a side note, I have received various “official” notices in the mail with a very strong call to action. This call to action virtually screams that I MUST contact them and get a copy of my property deed TODAY (oh, and send them $55-85 for this important service). Here’s the deal—if you have signed any deed of conveyance, the attorney who handled this should have mailed you the original. Can’t find it? No problem! Go to your county Clerk of Superior Court (property records division) and get a copy… for FIFTY CENTS. Yep, those ‘official’ notices are a scam—legal, but still an absolute scam. Be safe out there!
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