By Attorney Christopher Carreira
In Massachusetts, a title examination involves searching at least 50 years of records related to a property at the Registry of Deeds, the Equity Court, the Bankruptcy Court, and even the Probate and Family Court. The purpose of this examination is to ensure that the new homeowner does not face any legal issues in the future with the documents that are publicly available to the law firm closing the transaction. An attorney typically reviews the examination for accuracy.
Title Issues
It is difficult to find someone who has not encountered a title issue at some point. These issues could include a missing mortgage discharge, a deed with typographical errors in the legal description, or a grantor clause with an incorrect name spelling. Fortunately, the Real Estate Bar Association of Massachusetts has a handbook of standards and forms to guide us in resolving these issues. This handbook contains over 200 pages of information on various title issues.
Title Insurance Companies
However, not every problem has a clear solution. It is often necessary for a title insurance company to approve a fix before any action can be taken. Title insurance companies are frequently involved when a buyer is obtaining a mortgage or when a new homeowner wants to insure the title to the property. If a problem is discovered later, lawyers may be needed to resolve the issue in court. Each title insurance company has a team of lawyers to answer questions and litigate title issues, but these lawyers do not always agree with each other.
An Example
A homeowner had two mortgages on her property. She lost her job due to illness, fell behind on her mortgage payments, and had to rely on credit cards. Six months later, she was able to return to work but needed to file a Chapter 13 bankruptcy case to eliminate her credit card debt and catch up on her mortgage payments. As part of the case, she was able to eliminate her second mortgage because the property was worth less than the amount owed on her first mortgage at the time of the bankruptcy filing.
As she got older, she decided to sell her property and downsize to a condominium. She signed a Purchase and Sales Agreement and was two weeks away from closing when the buyer’s lender’s closing attorney advised that the second mortgage needed to be paid off. She explained that the bankruptcy court had eliminated it, so it did not need to be paid off. The closing attorney called his title insurance company, which insisted that a discharge of the mortgage was necessary for marketable title. Despite numerous letters from the closing attorney, the mortgage company refused to discharge the mortgage, delaying the closing date.
The Solution
Frustrated, the homeowner called another attorney, who advised that the mortgage did not need to be discharged and that a copy of the Bankruptcy Court’s order could be recorded at the Registry of Deeds to resolve the issue. The homeowner was puzzled as to why the original attorney had not thought of this solution. Unfortunately, the original closing attorney was only able to work with one title insurance company, which was very conservative and did not allow the court order to clear the title issue. Fortunately, the homeowner suggested the buyer switch attorneys to complete the closing. The new closing attorney worked with three title insurance companies, two of which agreed with the proposed solution of recording the Bankruptcy Court order.
The Cost
After months of wasted time and extra money spent on mortgage payments and bills, the new buyer was finally able to move into the property. However, they had to accept a higher interest rate and payment than originally qualified for because the new closing attorney closed the transaction with one of their three title insurance companies. This situation highlights the importance of having options.