Insuring Easements and Access - Revision history

Joetschida at 23:28, 27 June 2020

2020-06-27T23:28:14Z

Joetschida: /* III. TYPES OF ACCESS */

2020-06-27T23:22:30Z

‎III. TYPES OF ACCESS

Joetschida at 05:14, 27 June 2020

2020-06-27T05:14:11Z

Show changes

Joetschida: /* I. A TITLE INSURANCE POLICY IS NOT A GUARANTEE OR WARRANTY OF ACCESS */

2020-05-11T03:20:32Z

‎I. A TITLE INSURANCE POLICY IS NOT A GUARANTEE OR WARRANTY OF ACCESS

Joetschida: /* III. TYPES OF ACCESS */

2020-05-10T17:38:40Z

‎III. TYPES OF ACCESS

Joetschida at 17:36, 10 May 2020

2020-05-10T17:36:13Z

Joetschida: /* I. INTRODUCTION */

2020-05-10T17:33:58Z

‎I. INTRODUCTION

Joetschida: /* II. A TITLE INSURANCE POLICY IS NOT A GUARANTEE OR WARRANTY OF ACCESS */

2020-05-10T17:32:59Z

‎II. A TITLE INSURANCE POLICY IS NOT A GUARANTEE OR WARRANTY OF ACCESS

Joetschida: /* II. A TITLE INSURANCE POLICY IS NOT A GUARANTEE OR WARRANTY OF ACCESS */

2020-05-10T17:31:18Z

‎II. A TITLE INSURANCE POLICY IS NOT A GUARANTEE OR WARRANTY OF ACCESS

Joetschida at 17:29, 10 May 2020

2020-05-10T17:29:33Z

@@ Line 1: / Line 1: @@
-==I.	A TITLE INSURANCE POLICY IS NOT A GUARANTEE OR WARRANTY OF ACCESS==
+===I.	A TITLE INSURANCE POLICY IS NOT A GUARANTEE OR WARRANTY OF ACCESS===
 :A.  Contract of Indemnity
@@ Line 12: / Line 11: @@
 :::In CMEI, Inc. v. American Title Insurance Company, 447 So.2d 427, 428 (Fla. 5 DCA 1984), Judge Cowart stated that title policies are:
-	“[C]ontracts of indemnity, under which the insurer agrees to indemnify the insured up to
+::::“[C]ontracts of indemnity, under which the insurer agrees to indemnify the insured up to a specific amount against loss or damage resulting from liens, encumbrances or title defects and claims within its coverages”.
 :::Because a title policy is a contract of indemnity, the Insured will be indemnified i.e. compensated, for a loss incurred due to a title issue covered by the policy such as a lack of legal access.
@@ Line 20: / Line 17: @@
 :B.  Option to Pay
-:Since a title policy is a contract of indemnity, when a title claim is submitted to the title insurer, the title insurer has the option under Condition 7(b)(ii) to pay or settle the claim with the insured, or under 7(b)(i), to pay or settle the title claim with a third party alleging some interest in the property.  Condition 7 of the policy provides:
+::Since a title policy is a contract of indemnity, when a title claim is submitted to the title insurer, the title insurer has the option under Condition 7(b)(ii) to pay or settle the claim with the insured, or under 7(b)(i), to pay or settle the title claim with a third party alleging some interest in the property.  Condition 7 of the policy provides:
 ::7. OPTIONS TO PAY OR OTHERWISE SETTLE CLAIMS; TERMINATION OF LIABILITY
@@ Line 52: / Line 49: @@
 Upon the exercise by the Company of this option, all liability and obligations of the Company to the Insured under this policy, other than to make the payment required in this subsection, shall terminate, including any liability or obligation to defend, prosecute, or continue any litigation.”
-==II.	POLICY COVERAGE==
+===II.	POLICY COVERAGE===
 :A Title Insurance Policy consists of a Jacket, Schedule A, Schedule B-1, and Endorsements.  Loan Policies also have a Schedule B-2 for subordinate matters.  These materials only discuss the policy jacket which contains the coverages, the conditions, and the exclusions from coverage.
@@ Line 64: / Line 61: @@
 :::At the top of the first page of the policy jacket labeled “COVERED RISKS”, the policy provides:
-“SUBJECT TO THE EXCLUSIONS FROM COVERAGE, THE EXCEPTIONS FROM COVERAGE CONTAINED IN SCHEDULE B, AND THE CONDITIONS, WFG NATIONAL TITLE INSURANCE COMPANY, a South Carolina corporation (the “Company”) insures, as of Date of Policy, against loss or damage, not exceeding the Amount of Insurance, sustained or incurred by the Insured by reason of:”
+::::“SUBJECT TO THE EXCLUSIONS FROM COVERAGE, THE EXCEPTIONS FROM COVERAGE CONTAINED IN SCHEDULE B, AND THE CONDITIONS, WFG NATIONAL TITLE INSURANCE COMPANY, a South Carolina corporation (the “Company”) insures, as of Date of Policy, against loss or damage, not exceeding the Amount of Insurance, sustained or incurred by the Insured by reason of:”
 :::After the forgoing, the owner’s policy jacket lists ten title issues that are insured by the policy (fourteen in the loan policy) which are titled “Covered Risks”.
@@ Line 84: / Line 81: @@
 ::Unless the title policy insures a separate access easement, the policy does not insure any particular route of access.  Therefore, as long as there is legal access to the property by any route, the title insurer’s obligations under Covered Risk #4 of the policy are fulfilled.
-==III.	TYPES OF ACCESS==
+===III.	TYPES OF ACCESS===
 :A.	Platted Streets

@@ Line 98: / Line 98: @@
 ::::If a seller is conveying a parcel of landlocked property to a buyer together with an easement over other property owned by the seller to provide legal access, the seller can create that easement in the deed conveying the landlocked parcel to the buyer.  For example, if the seller owns Parcels A and B, and Parcel A is being conveyed together with an easement over the west 25 feet of Parcel B for access, the easement over Parcel B can be created in the conveyance of Parcel A with the following language:
-“Parcel A . . . together with a perpetual non-exclusive easement for access over the west 25 feet of Parcel B that runs with the land for the benefit of the grantee [Buyer], his/her successors and assigns”.
+::::“Parcel A . . . together with a perpetual non-exclusive easement for access over the west 25 feet of Parcel B that runs with the land for the benefit of the grantee [Buyer], his/her successors and assigns”.
 :::2. Separate Document

@@ Line 5: / Line 5: @@
 A title insurance policy is a contact between the insured and the title insurer whereby the title insurer agrees to indemnify the insured for damages incurred due to a covered risk such as a lack of legal access.   In the Conditions of both the Owner’s and Loan Policy Jackets at Section 8, the policies provide as follows:
-	“This policy is a contract of indemnity against actual monetary loss or damage sustained 	or incurred by the Insured Claimant who has suffered loss or damage by reason of 	matters insured against by this policy.”
+	“''This policy is a contract of indemnity against actual monetary loss or damage sustained 	or incurred by the Insured Claimant who has suffered loss or damage by reason of 	matters insured against by this policy.''”
 In Lawyers Title Insurance Co. v. Synergism One Corp., 572 So.2d 517, 518 (4th DCA 1990), the 4th DCA stated that:  “A title policy indemnifies rather than guarantees the state of the insured title.”.  In Village Carver Phase 1, LLC v. Fidelity Nat.Title Ins. Co., 128 So.3d 107, 111 (Fla. 3 DCA 2013), the 3d DCA stated:
-	“Title insurance policies are indemnity contracts against actual monetary loss resulting 	from specified causes, such as defects, liens and encumbrances existing on the date the 	insurance policy is issued.”
+	“''Title insurance policies are indemnity contracts against actual monetary loss resulting 	from specified causes, such as defects, liens and encumbrances existing on the date the insurance policy is issued.”''
 In CMEI, Inc. v. American Title Insurance Company, 447 So.2d 427, 428 (Fla. 5 DCA 1984), Judge Cowart stated that title policies are:
@@ Line 34: / Line 34: @@
 Under the last sentence of Condition 7(b), the policy provides that the payment by the title insurer to indemnify the insured or to settle the title claim with a third party resolves the insurer’s obligations under the policy to the insured for that particular title claim:
-“Upon the exercise by the Company of either of the options provided for in subsections [7] (b)(i) or (ii), the Company’s obligations to the Insured under this policy for the claimed loss or damage, other than the payments required to be made, shall terminate, including any liability or obligation to defend, prosecute, or continue any litigation.”
+“''Upon the exercise by the Company of either of the options provided for in subsections [7] (b)(i) or (ii), the Company’s obligations to the Insured under this policy for the claimed loss or damage, other than the payments required to be made, shall terminate, including any liability or obligation to defend, prosecute, or continue any litigation.”''
 '''C.  Option to Cure'''

@@ Line 92: / Line 92: @@
 	'''A.	Platted Streets'''
-Under Florida Statute 177.085(3), all streets, alleys and easements shown on a plat are dedicated to the public unless stated otherwise in the plat.  Even if the streets shown on a plat
+Under Florida Statute 177.085(3), all streets, alleys and easements shown on a plat are dedicated to the public unless stated otherwise in the plat.  Even if the streets shown on a plat are private streets, owners of lots in the subdivision have the right to use those platted streets. Therefore, as long as the platted streets lead to a public road, those streets provide legal access to the property and fulfill a title insurer’s obligations under Covered Risk #4 insuring a right of access.  Title insurers do not specifically insure platted roads even though lenders sometimes make that request.
 '''B.	Easements'''
@@ Line 113: / Line 109: @@
 If requested by the a buyer, the easement described in subparagraphs IV.B (1) and (2) can be insured as an additional insured Parcel in the policy.  Two parcels would be insured: (1) Parcel A as to a fee interest vested in the insured buyer; and (2) the easement over the West 25 feet of
-Parcel B.  Even though the easement would be insured by the title policy, the policy would
+Parcel B.  Even though the easement would be insured by the title policy, the policy would contain an exception for the terms of the easement whether the easement was created in a deed or by a separate instrument.
 . Reserve an Easement
-If the foregoing Example is changed so that the owner of Parcels A and B is selling
+If the foregoing Example is changed so that the owner of Parcels A and B is selling Parcel B instead of Parcel A.  Since Parcel A, in this example, is landlocked and needs an easement over Parcel B for access, when Parcel B is conveyed to the buyer, the seller will need to reserve an easement over Parcel B for the benefit of Parcel A in the deed conveying Parcel B to the buyer.  The language to reserve the easement would be:
 “Subject to a perpetual non-exclusive easement for access reserved in favor of the grantor, his/her successors and assigns, over the west 25 feet of Parcel B for the benefit of Parcel A to run with the land.”
@@ Line 137: / Line 129: @@
 . Maintained by County, Municipality, or DOT
-	Under F.S. 95.361(2), if the County, Municipality, or the Department of Transportation did not construct the road but has maintained or repaired the road continuously and uninterruptedly for 7 years, the road is deemed dedicated to the public to the extent of the width
+	Under F.S. 95.361(2), if the County, Municipality, or the Department of Transportation did not construct the road but has maintained or repaired the road continuously and uninterruptedly for 7 years, the road is deemed dedicated to the public to the extent of the width maintained.  And, as with F.S. 95.361(1), title to the road vests in the County, the Municipality,
 or the State of Florida depending upon whether the road is a County, Municipal, or State road.
@@ Line 145: / Line 136: @@
 . Ways of Necessity
 . Prescriptive Easements
 The foregoing types of access will be explained in another Section of these materials by another author.  However, from a title insurance standpoint, a title insurer will not rely on these types of access until a court has entered a final judgment against the pertinent parties establishing access using the foregoing as a legal basis for that access.
 =IV.	EASEMENT ISSUES=

@@ Line 1: / Line 1: @@
-=II.	A TITLE INSURANCE POLICY IS NOT A GUARANTEE OR WARRANTY OF ACCESS=
+=I.	A TITLE INSURANCE POLICY IS NOT A GUARANTEE OR WARRANTY OF ACCESS=
 '''A.  Contract of Indemnity'''
@@ Line 55: / Line 55: @@
 Upon the exercise by the Company of this option, all liability and obligations of the Company to the Insured under this policy, other than to make the payment required in this subsection, shall terminate, including any liability or obligation to defend, prosecute, or continue any litigation.”
-=III.	POLICY COVERAGE=
+=II.	POLICY COVERAGE=
 	A Title Insurance Policy consists of a Jacket, Schedule A, Schedule B-1, and Endorsements.  Loan Policies also have a Schedule B-2 for subordinate matters.  These materials only discuss the policy jacket which contains the coverages, the conditions, and the exclusions from coverage.
@@ Line 88: / Line 88: @@
 Unless the title policy insures a separate access easement, the policy does not insure any particular route of access.  Therefore, as long as there is legal access to the property by any route, the title insurer’s obligations under Covered Risk #4 of the policy are fulfilled.
-=IV.	TYPES OF ACCESS=
+=III.	TYPES OF ACCESS=
 	'''A.	Platted Streets'''
@@ Line 150: / Line 150: @@
 The foregoing types of access will be explained in another Section of these materials by another author.  However, from a title insurance standpoint, a title insurer will not rely on these types of access until a court has entered a final judgment against the pertinent parties establishing access using the foregoing as a legal basis for that access.
-=V.	EASEMENT ISSUES=
+=IV.	EASEMENT ISSUES=
 	'''A.	“Subject To'''
@@ Line 168: / Line 168: @@
 The east 30 feet of those lots became a road known as Clark Lane.  The 4th DCA in Hastie stated that since the deeds were ambiguous the trial court was “correct in looking at the circumstances surrounding the common grantor’s original conveyance of the lots on Clark Lane” to determine
 the intent of the grantor. Id at 464.  The Hastie Court, held that “[t]he deeds in this case demonstrated that the common grantors intended that [a] private road run up and down the east side of the lots on Clark Lane.”  Id. at 464.
@@ Line 199: / Line 197: @@
 Access based on an easement that was created in the back chain of title when the
-easement has not been referenced in deeds conveying the dominant parcel after the easement was created can be insured if the easement is an appurtenant easement.  “[A]n appurtenant easement
+easement has not been referenced in deeds conveying the dominant parcel after the easement was created can be insured if the easement is an appurtenant easement.  “[A]n appurtenant easement is a permanent easement running with the land and passes incident to it.”  Morris v. Winbar LLC, 273 So.3d 176 (Fla. 1 DCA 2019).  The dominant estate receives the benefit of an easement and the servient estate is burdened by the easement.  Id.  When an easement is appurtenant, it stays with the dominant estate and travels with a conveyance of the dominant estate whether the easement is specifically referenced in the deed or not.  Therefore, an appurtenant easement created in the back chain of title can be relied upon to insure access whether or not the easement is referenced in conveyances of the dominant estate after the easement was created.
+=V.	EXCEPTIONS FOR EASEMENTS=
 '''A.	Burdened Property'''
@@ Line 220: / Line 214: @@
-=VII.	INSURING EASEMENTS CONTAINED IN EXCEPTIONS=
+=VI.	INSURING EASEMENTS CONTAINED IN EXCEPTIONS=
 	In commercial transactions, lender’s counsel and buyer’s counsel occasionally request
 that certain easements contained in the exceptions listed in the title commitment be insured, such
 as reciprocal parking easements or joint entrance easements.  These non-exclusive easements can usually be insured as an additional parcel in the policy with the following or similar language:
 “Non-exclusive reciprocal parking Easement Agreement recorded in Official Records Book 1234 Page 567 Public Records of Orange County, Florida.”
 Even though the easement is insured, the policy will contain an exception for the terms of the easement because the use of the easement is limited by its terms.

← Older revision		Revision as of 17:33, 10 May 2020
Line 1:		Line 1:
−	~~=I. INTRODUCTION=~~
−
−	~~The purpose of these materials is to explain access coverage under a title insurance policy, how easements are insured, and the related exceptions from coverage.~~
−
	=II. A TITLE INSURANCE POLICY IS NOT A GUARANTEE OR WARRANTY OF ACCESS=		=II. A TITLE INSURANCE POLICY IS NOT A GUARANTEE OR WARRANTY OF ACCESS=

@@ Line 42: / Line 42: @@
 '''C.  Option to Cure'''
-	While the title policy is a contract of indemnity obligating the title insurer to indemnify the insured for a covered loss, under Condition 5(b) of the title policy, the title insurer has the
+	While the title policy is a contract of indemnity obligating the title insurer to indemnify the insured for a covered loss, under Condition 5(b) of the title policy, the title insurer has the option to cure the title defect including a lack of legal access by any method including litigation.  Condition 5(b) of the Owner’s and Loan policies provides:
 “The Company shall have the right, in addition to the options contained in Section 7 of these Conditions, at its own cost, to institute and prosecute any action or proceeding or to do any other act that in its opinion may be necessary or desirable to establish the Title, as insured, or to prevent or reduce loss or damage to the Insured.”