Fund News and Alerts

The Importance of Conducting a Pre-Closing Update

Although not easily recognized by its formal name, EX001, the pre-closing update clause appears on nearly every commitment for title insurance prepared by The Fund. The requirement is an important reminder to obtain a title update prior to closing: “An update of the title search must be completed just prior to the closing, and the commitment must be endorsed to require clearance of or take exception for, any additional title defects or adverse matters found.”  While this requirement seems simple enough, its satisfaction is critical before closing and issuing a policy of title insurance. 

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10/01/2024

Powers of Attorney: The Essentials

Powers of attorney are used to facilitate a transaction when a party is unable to sign the closing documents in person. The purpose of a power of attorney is to give authority to another person, the “agent” or “attorney in fact,” to act on behalf of the person granting the power of attorney, the “principal.” In Florida, Sec. 709.2105(1), F.S., provides that the agent may be “a natural person who is 18 years of age or older or a financial institution that has trust powers, has a place of business in this state, and is authorized to conduct trust business in this state.” Chapter 4 of the Fund Title Notes discusses powers of attorney in detail. The purpose of this article is to provide Fund Members with the key points of powers of attorney and how they are used in real estate transactions.

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09/03/2024

The New Florida “My Safe Condominium Pilot Program”

During the 2024 session, the Florida Legislature passed House Bill 1029 (HB 1029), establishing an important pilot program for hurricane mitigation designed to help protect condominiums in Florida. The bill was approved by the Governor and assigned Session Law 2024-108, effective July 1, 2024. This article will highlight the significant provisions of the new law. 

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08/01/2024

From Oaths to Pixels: Navigating Remote Online Notarization in Florida

As Florida has embraced technological advancements in the notarial process by allowing online notary publics to perform remote online notarization (RON), certain scenarios recur for Fund Members, leading to questions about Fund Underwriting approval requirements. The most frequent questions posed by Fund Members involve the requirements for Fund Underwriting RON approval when the signer is a foreign national. These situations require additional analysis as opposed to scenarios where the signer is a United States citizen. 

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07/01/2024

Restoration of Priority: Applying the Revised Notice of Termination Statute

Title insurers are routinely called upon to insure loans on property before, during, and after construction. The priority of the loan is of paramount importance to the lender in every instance. Florida’s Construction Lien Law, Sec. 713.13, F.S., contains the concept of the notice of commencement. The notice of commencement marks the beginning of construction and establishes a single point in time to which any liens filed against the property relate back. A notice of commencement is valid for one year (or longer if so provided). Its primary purposes are to create an equal playing field for all who work on a project and eliminate disputes over the priority of lienors’ claims filed at various times during construction. A notice of commencement can create a challenge to the loan priority if it is recorded and unexpired prior to a mortgage in a current loan transaction. 

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06/03/2024

Issuing Implementing Rules to Florida’s Foreign Interest Law

The Department of Agriculture and Consumer Services Joins the Department of Commerce in Issuing Implementing Rules to Florida’s Foreign Interest Law.

On Mar. 15, 2024, the Florida Department of Agriculture and Consumer Services (FDACS) issued rules implementing the provisions of Ch. 2023-33, Laws of Florida, relating to the interests of foreign principal ownership of agricultural land. The FDACS rules went into effect on Apr. 4, 2024, and are in Ch. 5J-27, F.A.C. The rules mirror in many ways the implementing rules issued earlier this year by the Florida Department of Commerce (FDOC) relating to the interests of foreign principal ownership of non-agricultural real property. The FDOC rules are in Ch. 73C-60, F.A.C. This article will highlight some key aspects of the FDACS and FDOC rules. 

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05/01/2024

Goodbye, GTOs; Hello Forever Reporting?

On Feb. 7, 2024, the U.S. Department of Treasury’s Financial Crimes Enforcement Network (FinCEN) issued a Notice of Proposed Rulemaking. The new rule would replace the temporary Geographic Targeting Orders (GTOs) that have for years required title insurance companies and their agents to report residential real estate purchases above a certain dollar amount in certain localities by business entities without institutional financing. FinCEN issued the proposed rule on Feb. 16, 2024.  The proposed rule is currently subject to a 60-day comment period.   Read the article

04/01/2024

Addressing Title Objections to Development Agreements and Development Orders

Objections to development agreements and development orders generally arise in commercial transactions. This article is the third in a series of articles addressing specific title objections. Like its predecessors, it is designed to help Fund Members analyze specific objections’ merits and provide potential resolutions. For guidance in addressing title objections related to surveys or tenants, please see, “Addressing Specific Title Objections Relating to Surveys and Tenants,” 54 Fund Concept 49 (May 2022), and for guidance in addressing water and oil, gas, and mineral right objections, please see, “Addressing Title Objections to Water Rights and Oil, Gas & Mineral Rights,” 55 Fund Concept 69 (June 2023).

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03/01/2024

2023 Sightings of Florida’s ”Legal Chameleon”

Florida’s homestead exemption laws have been compared by legal scholars and courts to a chameleon “which changes color to accord with the background against which it is viewed.” Crosby and Miller, Our Legal Chameleon: The Florida Homestead Exemption, 2 U. Fla. L. Rev. 12 (1949). Under Florida’s Constitution and Statutes, there have developed three distinct aspects of Florida homestead law: (1) exemption from creditor’s claims, (2) restrictions on alienation, and (3) tax exemptions and benefits. Art. X, Sec. 4(a), Fla. Const., protects the homestead from forced sale by creditors unless the judgment stems from one of the limited exceptions in the Constitution. Art. X, Sec. 4(c) Fla. Const., establishes restrictions on the alienation of a homestead. Restrictions with respect to the devise and descent of homestead property are codified in Secs. 732.401 and 732.4015, F.S. Art. VII, Secs. 4(d) and 6, Fl. Const., set forth Florida’s homestead tax exemption laws which are codified in Ch. 196 and Sec. 193.155, F.S. This update covers the 2023 reported state and federal case sightings of the Florida “legal chameleon” (a/k/a Homestead).

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02/01/2024

Fraud and Forgery - Catch Me If You Can

The rise in instances of fraud and forgery in real estate transactions continues to sound alarms across the industry. The statistics governing fraud and forgery and the way the parties are targeted gives all of us cause for concern. CertifID, a third-party verification service, reports that 2023 data it collected revealed that there was a record fivefold increase in mortgage payoff fraud attempts from the first quarter to the second quarter alone.  Read the article

01/02/2024