Fund News and Alerts

The Florida real estate market has been very active for the last two years, spurred on by low interest rates on mortgages and a large influx of people relocating to the state. Unfortunately, with increasing land values and sales volume, it was inevitable that criminals have once again taken note of Florida’s prosperity and are attempting to steal as much as they can through fraudulent transactions. 

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07/01/2022

By Melissa Jay Murphy, Executive Vice President and General Counsel, The Fund

Over the last few months, the Florida real estate industry has experienced an ever-increasing volume of sales and mortgages that have been found to be fraudulent.  Most commonly, the property is vacant with no mortgage and often the lot is owned by a seller whose address shows they live in a foreign country.  The fraudster either forges a deed from the true owner to the fraudster, or just holds himself out as the true owner and then lists the property for sale (often on Zillow), for a very attractive price.  A buyer bites, the closing date is set, and if someone does not figure it out, the fraudster gets away with many thousands of dollars and no one knows until it is too late to recover the money.

07/01/2022

After many years of work and deliberation, on July 30, 2021, the American Land Title Association published new policy forms and endorsements with an effective date of July 1, 2021. The 2021 ALTA forms include a new Commitment, Loan Policy, Owner’s Policy, Short Form Loan Policy, and some of the endorsements. The 2021 ALTA forms have been submitted for review and approval with the Florida Office of Insurance Regulation (OIR). Approval of the new forms for use in Florida is anticipated sometime in the coming months. Read article

06/01/2022

Fund Members must address title objections from lenders, buyers, and even sellers. These parties have different stakes in the transaction, and their title objections will be reflective of their various interests. Contract provisions are also likely to dictate what is or is not objectionable, who may object, when objections and responses must be made, and by which party. When faced with title objections, discerning what can be modified or deleted is both science and art. This article focuses on two of the most common specific title objections, survey matters and tenants in possession, and offers step by step guidance for analyzing the merits of the objections and determining potential resolutions. Read the article

05/01/2022

The Fund’s title insurance commitment requirement to confirm the authority of the individual designated to bind an LLC includes the requirement to determine if the LLC is a sole member LLC:

Confirm the authority of the individual designated to bind the LLC by the laws of its jurisdiction of formation, and where the authority is not confirmed by public records, record appropriate evidence of authority. If the LLC is a sole member LLC, provide the name of the sole member for review. The Company reserves the right to make further requirements. (emphasis added).

The purpose of the requirement to disclose whether the LLC is a sole member LLC is to determine if the LLC may be exposed to judgment creditors of the sole member due to the statutory distinction between multi-member and sole member LLCs in the application of charging orders as provided by Sec. 605.0503, F.S. Read the article

04/01/2022

This article provides a brief overview of the homestead provisions of the Florida Constitution and a discussion of the relevant case law from 2021.

Homestead Provisions of the Florida Constitution

The Florida Constitution contains three provisions that apply to homestead property. The first, under Art. VII, Sec. 6, Fla. Const. 1968, provides owners of homestead property with tax exemptions related to valuation for ad valorem taxes. The second, under Art. X, Sec. 4(a), Fla. Const. 1968, provides owners of homestead property with protection against forced sale by creditors unless the debt is for taxes or other obligations contracted to purchase or improve the property. The third provision, under Art. X, Sec. 4(c), Fla. Const. 1968, restricts alienation and devise of homestead property.

Historically, courts have liberally construed the homestead exemption from forced sale for the benefit of the person claiming homestead. On the other hand, courts have strictly construed the homestead tax exemption. Accordingly, Fund Members should keep the differing standards of review in mind when analyzing matters related to Constitutional homestead provisions. Read the article

 

03/01/2022

By: Brenda Ezell, Esq., Jacksonville, Member of The Fund

By now we have all heard the term “heirs’ property,” particularly since Florida’s enactment of the Uniform Partition of Heirs Property Act (the “Act”) which became effective on July 1, 2020. This article is not a discussion of the Act, as a very thorough analysis was authored by Jalinda Davis, Senior Fund Underwriting Counsel at Attorneys’ Title Fund Services, LLC, and can be located in the November 2021 edition of The Fund Concept. Rather, this article is meant to serve as an analysis of the issues compelling passage of the Act and my own practical introduction to these issues.

02/21/2022

Since 2016, Fund Members have been responsible for collecting information to comply with Geographic Targeting Orders (GTOs) issued by the Financial Crimes Enforcement Network (FinCEN), a division of the U.S. Department of Treasury. Twelve GTOs have been delivered to Old Republic National Title Insurance Company and other title insurance underwriters covering time periods of, at most, 180 days, the maximum allowed by regulation. Read the article

02/01/2022

During the course of routine audits performed on every Fund Member, Fund auditors examine a representative sample of closing files and their settlement statements. The auditors often encounter, and call the Fund Member’s attention to, fees prohibited by law in Florida or by the federal Real Estate Settlement Procedures Act (RESPA). This article will review and explain why these fees are problematic. Read the article.

01/01/2022

Fund underwriting attorneys respond to thousands of calls and emails every year. The following five questions are among the most common questions received during the past year.
 

1. Why does the commitment call for a trustee of a trust to convey as trustee and individually?
2. May I use this power of attorney for my closing?
3. What do I do when the owner tells me that a mortgage shown as a requirement to be satisfied on the commitment has been paid off?
4. Can I use a prior policy to waive commitment requirements?
5. Is the policy endorsement that the lender is requesting available in Florida?

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12/01/2021