​Why do I need title insurance?
I cannot even tell you how many times that I have been asked that question.
The truth is most people don't know what title insurance is and I do not blame them, I did not know what it was when I bought my first home!
So we have summed up exactly what is title insurance and why you need it in a few succinct points:
Title insurance is NOT casualty insurance. Title insurance protects the new owner (and lender, if any) from any liens, encumbrances, or claims against the property that originated prior to their ownership.
For example: A buys a home from B and B had a home equity line of credit. B was a bad boy. B withdrew the entire line of credit the day of closing! Now A has a valid and enforceable mortgage against A's new home. But A was smart and purchased an owner's title insurance policy which now protects A's interest in the home and is liable for the balance of the equity line of credit.
Another example: A sells his primary residence aka homestead to B. A is married but A's spouse did not sign the deed. Florida law requires spousal joinder on conveyance of homestead property. So now B's title (deed) is defective. B must now place a claim with his title insurance policy to secure a corrective deed so that B can sell or mortgage/encumber the property as B wishes.
Title insurance protects your equity in your home up to the full amount of the price for which the home was purchased. Title insurance is absolutely necessary. Spend a few dollars now to save a lot of dollars later.

Although the checklist below is by no means comprehensive, it is a good start.  Buying at the foreclosure auction is a risky business!  With the right knowledge and diligence, buying a property at the foreclosure auction riddled with title defects can be avoided.  Schedule an appointment with our title defect specialist, Jordana Sarrell, Esq., LL.M., to discuss the benefits and downfalls of foreclosure properties and how to protect your interest and money! 

1. Establish the Chain of Title 
   1. Is the deed vesting title in borrowers executed properly?  Spousal joinder or non-homestead language; properly witnessed, etc.
   2. Verify the legal description and title owners 
      1. Verify the legal description matches across the board (the deed, mortgage, Lis Pendens in foreclosure action, the judgment, etc.)
      2. conduct a name search in the public records to search for judgments against homeowners that does not attach to the legal description (IRS liens, Domestic Support Obligations, other monetary judgments)
   3. Ensure you are buying a FIRST mortgage!  Florida follows this basic recording law to establish lien priority: "first in time first in right"
   4. Are all prior mortgages properly satisfied?  
2. Review the Foreclosure Docket!
   1. Are the proper defendants named?
      1. Borrowers
      2. Junior Liens: judgments against homeowners for credit cards, domestic support obligations, second mortgages, HELOCs, etc. 
      3. Howeowner's Association or Condo Association 
      4. IRS Liens
      5. "Unknown Spouses"
      6. County/City (code liens)
      7. Unknown Tenants or Known Tenants
   2. Is the borrower dead or alive?  If dead, is there a probate and the estate and Personal Representative of the Estate served?  If no probate, were the unknown heirs of the estate named and had an Administrator Ad Litem appointed to protect their interests?
   3. Have all parties been properly served?  Personal, substitute or constructive service?
   4. Has the original promissory note been deposited in the court registry?  If not, was a count to re-establish the lost note pled?
   5. Is the foreclosure being contested?  If yes, then you may have issues arise after the sale.
3. Have you checked the real estate taxes?  There may be a few years of delinquent taxes you will be responsible to assume if you purchase property!  
4. HOA/CONDO Liens: are they recorded?  Does the Declaration of Covenants, Conditions and Restrictions limited a third party purchaser at a judicial sale's liability?  
5. Other Miscellaneous Judgments and Liens exist?
6. The Final Judgment of Foreclosure: 
   1. Contains proper legal description 
   2. Establishes the lien of the bank foreclosing is superior to all other interests named and said interests are eliminated by virtue of the judgment
   3. Upon issuance of the Certificate of Sale the right to redemption expires
   4. Upon issuance of the Certificate of Title, the purchaser is entitled to possession by way of a writ of possession
7. The Foreclosure Sale:
   1. Was a Notice of Sale Published? 
   2. Is the Sale online?  Are you properly registered with the deposit in the court registry? 

Want to know what you do if a problem arises when going through these checklist items? It is essential to conduct a full and thorough search behind and through the foreclosure to safeguard against buying problematic or defective title at the foreclosure auction.  A real estate attorney should be consulted for guidance and advice.  
The checklist above is NOT a comprehensive checklist and is not intended to serve as a guide to buying property at the foreclosure sales.  The checklist is for informational purposes only.  For a more thorough and detailed analysis and checklist, contact SSB LAW today!  

Managing attorney, Jordana Stern Sarrell, Esq., LL.M., has been awarded the distinct honor of being chosen as a Florida Super Lawyer Rising Star in the area of Real Estate Law for the second year in a row.

​​​In January 2015 the Supreme Court of the United States issued an historic and groundbreaking ruling in Obergefell v. Hodges which held that the fundamental right to marry is guaranteed to same-sex couples by both the due process and equal protection clauses of the fourteenth amendment of the U.S. Constitution.  So what does this mean with respect to real estate in Florida? Well…

1. In Florida when a married couple takes title to property, title is taken as “husband and wife”, “wife and wife” or “husband and husband” which automatically defaults to the protective status of “Tenants by the Entireties” (“TE”).  TE status means that upon the passing of one spouse, title will automatically transfer to the surviving spouse without the need for a probate administration.
2. TE status also provides greater creditor protection when the property is your homestead meaning that the only judgments that can be enforced against your homestead are: debts arising out of the property itself (mortgages, construction liens, etc.), taxes or domestic support obligations (child support or alimony).
3. In Florida, you cannot encumber or transfer your homestead without the consent of your spouse and the Florida constitution provides strict guidelines for the devise of homestead property when survived by a spouse or minor children. 

For more information on how the landmark Supreme Court decision affects your rights in a same sex marriage, please call our firm to discuss.