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This raises the question: Did the Title Company prepare the Deed? If so (and it is standard practice in my area that they do), the Attorney at the Title Company should have checked how the Condemnation affected the title to the property. I don't think your attorney should automatically exclude the Title Company as a potentially liable party based on Exception #7 in your policy. The Title Company's sole purpose is to guarantee good and marketable title. In this case, IMO, they failed.
Nope..our closing attorney prepared the new deed. And because she missed it on the title report..prepared it just like the previous one at 3 acres. So I'm sure the title ins. co is in the clear.
Quote:
Originally Posted by lvoc
Another tidbit for this discussion. Bankruptcy trustees need not be lawyers and are often accountants and can be anything. They actually have a lawyer appointed to assist them. They get paid a small sum plus a percentage of the estate...a reasonably large percentage on small estates.
Right..but he does happen to be a lawyer. He definitely benefited from the double dip.
Originally posted by Ivoc
As to Title liability I would be skeptical. The property was, at the time of the issuance of the Title Insurance, properly described. That was the legal definition. There was a hooker in the condemnation but that was also described. So they issued to the current description as modified by the condemnation.
[/quote]
I think your right. Because our attorney prepared the deed..I think they are off the hook..no doubt about it.
Last edited by ~Pajama mama~; 09-23-2012 at 12:23 PM..
The legal description had not been changed and still has not been. The Title Company goes with what exists in the system. And they properly called out the pending modifications.
You get that problem all the time in RE. You can have a conditional thing in a pending status forever. So you cite the legal description and the pending thing.
The real problem is that the closing lawyer missed the condemnation. A virtually incomprehensible error.
Nope..our closing attorney prepared the new deed. And because she missed it on the title report..prepared it just like the previous one at 3 acres. So I'm sure the title ins. co is in the clear.
Oh well. It was a thought. Was this the first-ever closing done by your closing attorney?!! (No matter that her assistant apparently did most of the work--it's still her closing.)
Was this the first-ever closing done by your closing attorney?!! (No matter that her assistant apparently did most of the work--it's still her closing.)
You would think so huh? But, no. She just didn't have the experience with this complicated of a closing. She was lax and just let her assistant do everything. Unfortunately, she DIDN'T do everything. Now she is without a job and we are in very difficult situation.
If the original closing attorney did not have insurance, then you sue her personally, right?
Or sue her professional association (PA) or corporation or whatever she has her business listed as
Surely she would have to pay future earnings from the P.A if you won or settled with her. In other words, it's not like an attorney is not going to have money to pay as future earnings are expected and some assets,( if P.A. owns an office building, etc.).
You would expect that she would settle. By ignoring the notice, she now has time to stash assets. At least with filing the lawsuit, things can be official and get rolling along. Seems weird that your attorney took so long to file. It's almost like he didn't want to file and kept re-drawing a line in the sand (which kept getting ignored).
A PA usually does not have assets. Due to federal tax laws most PAs pay out its profits in compensation to its partners. Most PAs do not own the office building. They usually rent it. Sometimes the partners will own the building and lease it to the PA but it is rare (not unheard of) for a PA to have substantial assets. If there is a PA it is tough to sue the attorney personally unless she acted in such a way that the corporate veil was pierced.
Nope..our closing attorney prepared the new deed. And because she missed it on the title report..prepared it just like the previous one at 3 acres. So I'm sure the title ins. co is in the clear.
It is my understanding that if the title insurance says 3 acres, then you are personally insured for the entire 3 acres UNLESS they excluded the property that was condemned.
Here is the kicker though - a condemnation is not an easement, it is deeded property. You cant have the deeded property of someone else on your title insurance policy...so there is something not correct here....Either its insured or its not.
If its on the title insurance policy as 3 acres and you actually got less than 3 acres then its insured and the title company will need to defend the title....As to the closing attorney your title company will go after them and their insurance (if they have any) and any award will goto the Title insurance company through subrogation.
Also you seem to be a bona fide purchaser without knowledge of the transfer. A BFP without knowledge can obtain legal title to a piece of land if the legal owner failed to properly file the deed and perfect the transfer....If you filed your deed before the city/county or whoever did, then it is highly likely that you own the property in question. They are only protected if they properly followed the procedure and did not delay in filing.
These are all very general legal theories, but they all seem to apply here....this all just does not add up. While the attorney is obviously the party responsible for paying the person who ends up getting screwed - it appears that you did everything correct (depending on how you handled the exclusions?) and if so, you should be protected, and either the title insurance must pay you, and get paid back from your attorney, OR you own the land and the city will end up having to pay twice....File a suit to quiet title against the city and go from there.
It is my understanding that if the title insurance says 3 acres, then you are personally insured for the entire 3 acres UNLESS they excluded the property that was condemned.
Here is the kicker though - a condemnation is not an easement, it is deeded property. You cant have the deeded property of someone else on your title insurance policy...so there is something not correct here....Either its insured or its not.
If its on the title insurance policy as 3 acres and you actually got less than 3 acres then its insured and the title company will need to defend the title....As to the closing attorney your title company will go after them and their insurance (if they have any) and any award will goto the Title insurance company through subrogation.
Also you seem to be a bona fide purchaser without knowledge of the transfer. A BFP without knowledge can obtain legal title to a piece of land if the legal owner failed to properly file the deed and perfect the transfer....If you filed your deed before the city/county or whoever did, then it is highly likely that you own the property in question. They are only protected if they properly followed the procedure and did not delay in filing.
These are all very general legal theories, but they all seem to apply here....this all just does not add up. While the attorney is obviously the party responsible for paying the person who ends up getting screwed - it appears that you did everything correct (depending on how you handled the exclusions?) and if so, you should be protected, and either the title insurance must pay you, and get paid back from your attorney, OR you own the land and the city will end up having to pay twice....File a suit to quiet title against the city and go from there.
We both agree something just doesn't add up. My attorney is not interested in the fact that only the condem notice was filed in July 11 with no DEED filed as to date. How can this be ok? Does he never have to file a deed? As far as the Title Ins..they did have the legel description as 3 acres. But they excluded the condemnation on file which was 2 of those 3 acres. Screwed up eh? I wish oh how I wish we could just have the land but after many conversations with attorneys that was never brought up as an option. The township attny says he has done all he is required to do by filing the condem..he can file the deed when he gets ready. Boggles my mind how this is an acceptable practice. Do you think since Title ins says 3 acres but excludes the condemnation notice that the title ins is responsible?
I like the though but it is my understanding that a Title Company exception is pretty authoritative. When you think about it they have little other option. The property involved was and is still described as a three acre parcel. But they specifically said they would not cover against the filed condemnation.
I would be very, very surprised if you could successfully proceed on a listed exception.
We both agree something just doesn't add up. My attorney is not interested in the fact that only the condem notice was filed in July 11 with no DEED filed as to date. How can this be ok? Does he never have to file a deed? As far as the Title Ins..they did have the legel description as 3 acres. But they excluded the condemnation on file which was 2 of those 3 acres. Screwed up eh? I wish oh how I wish we could just have the land but after many conversations with attorneys that was never brought up as an option. The township attny says he has done all he is required to do by filing the condem..he can file the deed when he gets ready. Boggles my mind how this is an acceptable practice. Do you think since Title ins says 3 acres but excludes the condemnation notice that the title ins is responsible?
If the title company excluded it, they excluded it - there is no gray area there. The past is the past, you should always read title company exclusions as they are spelling out specifically what is wrong with your property and why they wont insure it...old news now I know, but still worth reiterating for everyone else.
The question is going to revolve around whether or not you had notice, either constructive or actual of the condemnation....without filing the deed, the city never put you on notice that a condemnation action had occurred....HOWEVER, the title company found the condemnation somehow...How did they know about it? Also, if they found it and disclosed it, I bet the township could argue that you knew about it...its a gray area, but I think the township would be successful.
If the county did file something showing that a condemnation proceeding existed then its likely you no longer qualify as without notice as required to be a BFP....its really a messy case here you have. It seems like the title company caught something your attorney did not, and nobody along the way ever spoke to anyone else about it.
There is a legal remedy for you somewhere and against someone, but I think you need an attorney who specializes in real property litigation....a general practice attorney is going to waste a lot of time getting up to speed on a case like this with such a highly specific set of facts/circumstances.
It is my understanding that if the title insurance says 3 acres, then you are personally insured for the entire 3 acres UNLESS they excluded the property that was condemned.
Here is the kicker though - a condemnation is not an easement, it is deeded property. You cant have the deeded property of someone else on your title insurance policy...so there is something not correct here....Either its insured or its not.
If its on the title insurance policy as 3 acres and you actually got less than 3 acres then its insured and the title company will need to defend the title....As to the closing attorney your title company will go after them and their insurance (if they have any) and any award will goto the Title insurance company through subrogation.
Also you seem to be a bona fide purchaser without knowledge of the transfer. A BFP without knowledge can obtain legal title to a piece of land if the legal owner failed to properly file the deed and perfect the transfer....If you filed your deed before the city/county or whoever did, then it is highly likely that you own the property in question. They are only protected if they properly followed the procedure and did not delay in filing.
These are all very general legal theories, but they all seem to apply here....this all just does not add up. While the attorney is obviously the party responsible for paying the person who ends up getting screwed - it appears that you did everything correct (depending on how you handled the exclusions?) and if so, you should be protected, and either the title insurance must pay you, and get paid back from your attorney, OR you own the land and the city will end up having to pay twice....File a suit to quiet title against the city and go from there.
You say the city will end up paying twice. Do you mean purchasing the land twice? So she could end up still owning the house on the smaller lot? I can see how this could work out to her advantage depending on how much they pay for it. I did own land in a similar situation and was compensated very well when they bought a very small portion to change a road. So then, after that sell the house and maybe end up ahead monetarily at least.
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