Real-estate | Boynton | Matthew T. Vanden Bosch, Attorney at Law

Real Estate

Real Estate Closings

A closing is defined as “a meeting of all parties involved in a property transaction during which pertinent documents are signed and transferred, and funds are distributed.” Typically, it is handled by a closing agent, which is where I come in, and will last approximately one hour.

I shall begin preparing for your  closing shortly after you sign your contract or formally commence refinance  procedures with your lending institution. Ordinarily my first step is to  request payoff information so I begin tracking down estoppel letters and payoff statements from the  persons presently holding a mortgage on the property.  I also shall request any information regarding homeowners or condominium association  dues and transfer fees. If a new mortgage is being obtained, I shall work closely with your lender to make sure that all of its closing requirements are met.

A title examination is conducted in order to verify the  seller’s/borrower’s right to transfer ownership/refinance and to discover any  outstanding mortgages, liens, restrictions, easements, etc., which may affect  the property. Then, a title commitment will be issued which will show any  matters reflected in the title examination, as well as a determination of the  documents needed to properly transfer the title of the property to the buyer.  I shall work closely with the  lender and Realtors to coordinate the ordering of the termite inspection,  survey, homeowner’s insurance and flood insurance (if applicable) and all other  items necessary to effectuate your closing.

Once the lender receives all required documents from the  buyer, the loan is approved, and the lender provides me  with the closing package, I shall contact you to schedule  the date and time for the closing. The lender will prepare a  closing package, consisting of the loan closing instructions, fees charged in  connection with the new loan, and any loan documents to be delivered to me. Then, I shall  prepare all of the necessary closing documents, including a closing statement  outlining all costs associated with the transfer of ownership as well as fees  charged in connection with the new loan.

Copies of the closing statement are usually faxed to the involved lender and real estate brokers for their approval. The buyer  and/or sellers are also entitled to review the settlement statement prior to  closing if requested.  Once the final  figures are approved by all the respective parties, the buyer must bring a Certified Check, Cashier’s Check, or Money Order to closing made payable in US currency to Matthew T. Vanden Bosch, Attorney at Law (or arrange a wire transfer of US funds to my Real Estate Trust Account in the amount of whatever money is outstanding and required to close.) This money is referred to as  “cash-to-close.”

The closing typically takes place in my office. The buyer, seller, any real estate agents, and I sit around a table together while I explain the closing statement as well as other closing documents.  When all of the documents have been executed, including the Warranty  Deed, and the buyer has given the cashier’s check to me, the seller receives his proceeds from the sale.

       After the closing, I shall send the original Warranty Deed and mortgage to the county courthouse for  recording. The completed loan package will be sent to the lender. All remaining  funds are disbursed according to the settlement statement, including outstanding  mortgage payoffs. The owner’s and lender’s title policies are issued when the  deed and mortgage are returned to our office  after recording- ordinarily the owner will receive his/her title policy 2-3  months after closing

Florida title insurance, according to its terms and provisions, protects the owner and lender against a loss resulting from defects in, or undisclosed liens upon, title. Lenders typically require a mortgagee title insurance policy and buying an owner’s policy is almost always a wise decision. As a member of Attorney’s Title Fund Services, Inc. (The Fund) and a title insurance agent of Old Republic National Title Insurance Company, I am uniquely positioned to provide you with thorough, detailed attention and outstanding personal service.

The Office of Program Policy Analysis & Government Accountability authored a fine history of title insurance in Florida:

"Title assurance systems in America were derived from the English conveyance system, which relied on attorneys, known as conveyancers, to search private documents, since there were no public documents to determine the condition of title.  Over time, the American system developed four additional mechanisms for guaranteeing title to real estate--title abstracts, which provide a permanent record of a title search; title certificates, which combine the title search and the opinion of title; title insurance, which affords protection against errors in the conveyance process; and land registration systems, which rely on judicial proceedings to convey title insurance.  Collectively these mechanisms rely on researching the chronological ownership of property to identify recorded events that have contributed to a title's present condition.  This ownership history is then evaluated in light of legal decisions and the requirements demanded by the real estate investment community.  Rosenberg, Moses K., "Historical Perspective of the Development of Rate Regulation of Title Insurance," The Journal of Risk and Insurance, Vol. 44, No. 2, (June, 1977), pp. 193-209.

After World War II, title insurance became a national standard for the real estate industry.  Institutional lenders required borrowers to use title insurance services to guarantee clear title to property as a condition of purchasing mortgage loans.

Florida's title insurance industry developed through several historical regulatory benchmarks.

The title insurance industry's development in Florida is tied to statutory and administrative law as well as key judicial decisions.  Prior to 1954, only attorneys could process title transfers and issue opinions on the status of property titles.  Insurers then issued policies based on these opinions.  However, in 1954, the Florida Supreme Court ruled in the Cooperman case that corporations could issue title policies and supervise property transfers, holding that these activities did not constitute the practice of law and thus could not be limited to attorneys.  Cooperman v. West Coast Title Co., 75 So. 2d 818 (Fla. 1954); The McPhee case further defined what activities title insurance companies were allowed to undertake.  The Florida Bar v. McPhee, 195 So. 2d 552 (Fla. 1967).

The Legislature recognized and defined title insurance in 1959.  In 1965, the Legislature gave the insurance commissioner authority to promulgate rates for title insurance premiums.  This established the foundation for the state's current regulation of title insurance, as much of the statutory history of title insurance relates to regulation of rates and establishing the qualification and procedures for licensing and monitoring agents and insurers.

In 1992, the Legislature mandated the licensing of title agents and agencies unless the agents are direct employees of a registered title insurance company.  The Legislature also allowed the Department of Insurance to establish limits on charges made by agents for title services.

In 2000, the Florida Supreme Court rules in the Butler case that agents could rebate a portion of their income to the consuming public.  The court allowed title agents to rebate a portion of their payment, known as a "Butler Rebate," to customers paying for title insurance but not to any other individuals involved in the transaction.  Chicago Title Ins. Co. v. Butler, 770 So.2d 1210 (Fla. 2000)."

The most recent significant change concerning title insurance regulation occurred in 2002 when voters passed a constitutional amendment to create the position of Chief Financial Officer.  As part of the cabinet reform initiative the Legislature eliminated the Departments of Insurance and Banking and Finance and created the Department of Financial Services and the Financial Services Commission.  The Department of Financial Services operates under the Chief Financial Officer.  The Insurance Commissioner and the Office of Insurance Regulation are administratively housed in the department and operate under the Financial Services Commission but not directly under the authority of the Chief Financial Officer.  The Financial Services Commission, comprised of the Governor and Cabinet, appoints the commissioner of the Office of Insurance Regulation and the commissioner of the Office of Financial Regulation.

Title Insurance

Tips for a Stress Free Closing

Work with a signed contract. A purchase contract signed by all buyers and sellers is the roadmap to a successful closing. Make sure to specify a set closing date. We can prepare a contract for you at no additional charge. Make sure to use a clear copy of the contract to avoid misunderstandings.

Closing Costs. Ask your lender, realtor and title company what your closing expenses will be. This is known as a "Good Faith Estimate".

For Sale by Owner.  Buying and selling on your own has pros and cons. Make sure to have a checklist of what you should be doing or what needs to get done. Have an Attorney or Title Agent review your contract prior to signing and make sure all expense and repair issues are addressed in advance.

Shop around and you will most likely save hundreds of dollars, if not thousands. Get all your estimates in writing. You may also use our handy closing costs calculators for both refinance or purchases at the following link.

Seller's Disclosure. Get one ! Even on a For Sale by Owner. Make sure you are aware of what the seller knows is wrong or needs repair on the property.

Property Inspection. Do not even think about buying a property with out one. No matter how new or how clean a property appears, inspectors know how to search every nook and cranny of roofs, electrical systems and plumbing just to name a few. Termites, mold and water damage are extremely common in Florida and costly to repair.

Know the marital status of all buyers and sellers.  Marital status is very importan in the conveyance of real property in Florida.  There is only married or single status in Florida; no legal separatoin.  Divorced persons claiming single status must provide copies of Court stamped Divorce Settlement papers.  Even parties who were married and have not seen each other in 20 years have a legal interest in the other person's real property and they must appear on the deed and sign the mortgages.  Claiming incorrect marital status status is considered mortgage fraud even if one is unaware of the law.

Survey. Surveys are required for lenders and title companies on single family homes only. A survey will show any potential encroachment (something crossing over your property boundary) or utility easements (i.e. Florida Power and Light or a road easement). Whether financing or paying cash, a survey is relatively low cost (approx. $350) and provides a homeowner peace of mind.

Signing. Make sure all buyers and sellers are available to sign the day of closing. If not documents can be signed in advance, by overnight mail and in certain cases using a Power of Attorney. All Power of Attorneys must be approved in advance.

Is the property for sale part of an estate or in probate?  If an owner on property that is being sold is deceased, we will need a legible copy of the death certificate and probate documents in order to close. Make sure everyone in the transaction is aware if a property is in probate.

Is a corporate entity buying or selling the real estate?  If yes, then get a corporate resolution authorizing the corporate entity to buy or sell the property, as the case may be, and appointing someone with authority to sign the contract and closing documents.

Is the property for sale part of an estate or in probate?  If an owner of property that is being sold is deceased, a legible copy of the death certificate or probate documents is necessary to close.  If the probate process (an execution of a will) has not occurred, I can help the seller in probatecourt to expedite the process.

Legal advice Get legal advice when being asked to sign any unusual documents that do not seem customary. Do not sign documents transferring legal title to your property without consulting an Attorney.

Stress Free Closing

For an original policy:

$5.75 per $1,000 up to the first $100.000 of coverage
$5.00 per thousand between 100k and 1M of coverage
$2.50 per thousand from 1M to 5M
$2.25 from 5M to 10M
$2.00 per thousand for any policy covering more than 10M

Plus there can be various Florida “Endorsements” which may be required including:

ALTA 4.1 Condo ($25) (OP/LP)
ALTA 5.1 PUD ($25) (OP/LP)
ALTA 6.0 Negotiable Rate Mortgage ($25) (LP)
ALTA 6.1 Variable Rate Mortgage ($25) (LP)
ALTA 6.2 Neg. Amoritzation Mortgage ($25) (LP)
ALTA 7.0 Manufactured Housing ($25) (OP/LP)
ALTA 8.1 Environmental Protection Liens ($25) (LP)
Florida Form 9 (10% of Insurance Rate) (LP)
Florida Form 9.1 (10% of Insurance Rate) (vacant land) (OP)
Florida Form 9.2 (10% of Insurance Rate) (improved land) (OP)
Navigational Servitude (10% of Insurance rate) (water front) (OP/LP)
Survey (survey not required for condo) (OP/LP)et to know you.

Title Insurance Rates

1776 Reasons to Buy Title Insurance

Why Buy Title Insurance

It is said in the real estate industry that title insurance is the single most important thing you can purchase to protect your property and your financial future. The types and names of policies referred to in this report may vary. You don't want problems from prior ownership's to interfere with your rights in court. A title insurance policy is your best protection against potential title defects, which can remain hidden despite the most thorough search of public records and the most careful escrow or closing. For a one-time premium, your title underwriter agrees to reimburse you for loss due to defects existing prior to the issue date of your policy, up to the policy amount. And, should it be needed, the policy also provides for the cost of legal defense of your title.

The standard coverage policy protects you against such potential defects as:
1. Forged deeds, mortgages, satisfactions or releases.
2. Deeds by person who is insane or mentally incompetent.
3. Deed by minor (may be disavowed).
4. Deed from corporation, unauthorized under corporate bylaws or given under falsified corporate resolution. 5. Deed from partnership, unauthorized under partnership agreement.
6. Deed from purported trustee, unauthorized under trust agreement.
7. Deed to or from a "corporation" before incorporation, or after loss of corporate charter.
8. Deed from a legal non-entity (styled, for example, as a church, charity or club).
9. Deed by person in a foreign country, vulnerable to challenge as incompetent, unauthorized or defective under foreign bylaws.
10. Claims resulting from use of "alias" or fictitious "name style" by a predecessor in title.
11. Deed challenged as being given under fraud, undue influence or duress.
12. Deed following non-judicial foreclosure, where required procedure was not followed.
13. Deed affecting land in judicial proceedings (bankruptcy, receivership, probate, conservatorship, and dissolution of marriage) unauthorized by court.
14. Deed following judicial proceedings, subject to appeal or further court order.
15. Deed following judicial proceedings, where all necessary parties were not joined.
16. Lack of jurisdiction over persons or property in judicial proceedings.
17. Deed signed by mistake (granter did not know what was signed).
18. Deed executed under falsified power of attorney.
19. Deed executed under expired power of attorney (death, disability or insanity of principal).
20. Deed apparently valid, but actually delivered after death of grantor or grantee, or without consent of grantor.
21. Deed affecting property purported to be separate property of grantor, which is in fact community or jointly-owned property.
22. Undisclosed divorce of one who conveys as sole heir of a deceased former spouse.
23. Deed affecting property of deceased person, not joining all heirs.
24. Deed following administration of estate of missing person, who later re-appears.
25. Conveyance by heir or survivor of a joint estate, who murdered the decedent.
26. Conveyances and proceedings affecting rights of service-member protected by the Soldiers and Sailors Civil Relief Act.
27. Conveyance void as in violation of public policy (payment of gambling debt, payment for contract to commit crime, or conveyance made in restraint of trade).
28. Deed to land including "wetlands" subject to public trust (vesting title in government to protect public interest in navigation, commerce, fishing and recreation).
29. Deed from government entity, vulnerable to challenge as unauthorized or unlawful.
30. Ineffective release of prior satisfied mortgage due to acquisition of note by bona fide purchaser (without notice of satisfaction).
31. Ineffective release of prior satisfied mortgage due to bankruptcy of creditor to recording of release (avoiding powers in bankruptcy).
32. Ineffective release or prior mortgage of lien as fraudulently obtained by predecessor in title.
33. Disputed release of prior mortgage or lien, as given under mistake or misunderstanding.
34. Ineffective subordination agreement, causing junior interest to be reinstated to priority.
35. Deed recorded, but not properly indexed so as to be located in the land records.
36. Undisclosed but recorded federal or state tax lien.
37. Undisclosed but recorded judgment or spousal/child support lien.
38. Undisclosed but recorded prior mortgage.
39. Undisclosed but recorded notice of pending lawsuit affecting land.
40. Undisclosed but recorded environmental lien.
41. Undisclosed but recorded option, or right of first refusal, to purchase property.
42. Undisclosed but recorded covenants or restrictions, with (or without) rights of reverter.
43. Undisclosed but recorded easements (for access, utilities, drainage, airspace, views) benefitingneighboring land.
44. Undisclosed but recorded boundary, party wall or setback agreements.
45. Errors in tax records (mailing tax bill to wrong party resulting in tax sale, or crediting payment to wrong property).
46. Erroneous release of tax or assessment liens, which are later reinstated to the tax rolls.
47. Erroneous reports furnished by tax officials (not binding local government).
48. Special assessments which become liens upon passage of law or ordinance, but before recorded notice or commencement of improvements for which assessment is made.
49. Adverse claim of vendor's lien.
50. Adverse claim of equitable lien.
51. Ambiguous covenants or restrictions in accident documents.
52. Misinterpretation of wills, deeds and other instruments.
53. Discovery of will of supposed intestate individual, after probate.
54. Discovery of later will after probate of first will.
55. Erroneous or inadequate legal descriptions.
56. Deed to land without a right of access to a public street or road.
57. Deed to land with legal access subject to undisclosed but recorded conditions or restrictions.
58. Right of access wiped out by foreclosure on neighboring land.
59. Patent defects in recorded instruments (for example, failure to attach notarial acknowledgment taken before commission or after expiration of commission).
60. Defective acknowledgment due to lack of authority of notary (acknowledgment taken before commission or after expiration of commission).
61. Forged notarization or witness acknowledgment.
62. Deed not properly recorded (wrong county, missing pages or other contents, or without required payment).
63. Deed from grantor who is claimed to have acquired title through fraud upon creditors or a prior owner. An extended coverage policy may be requested to protect against such additional defect.
64. Deed to a purchaser from one who has previously sold or leased the same land to a third party under an unrecorded contract, where the third party is in possession of the premises.
65. Claimed prescriptive rights, not of record and not disclosed by survey.
66. Physical location of easement (underground pipe or sewer line) which does not conform with easement of record. Deed to land with improvements encroaching upon land of another.
67. Incorrect survey (misstating location, dimensions, area, easements or improvements upon land).
68. "Mechanics' lien" claims (securing payment of contractors and material suppliers for improvements) which may attach without recorded notice.
69. Federal estate or state inheritance tax liens (may attach without recorded notice).
70. Pre-existing violation of subdivision mapping laws.
71. Pre-existing violation of zoning ordinances.
72. Pre-existing violation of conditions, covenants and restrictions affecting the land.
73. Post-policy forgery against the insured interest.
74. Forced removal of residential improvements due to lack of an appropriate building permit
(subject to deductible).
75. Post-policy construction of improvements by a neighbor onto insured land.
76. Damage to residential structures from use of the surface of insured land for extraction or development of minerals.

Title Insurance provides peace of mind for a one time cost!!

> About My Approach to The Law

"Agriculture, manufactures, commerce, and navigation, the four pillars of our prosperity, are the most thriving when left most free to individual enterprise."
_

Thomas Jefferson

(1743-1826)

Keys to Real Estate Closings & Title Insurance

Matthew T. Vanden Bosch