ID Underwriting Summary

Search/Exam

• Minimum Search Requirements -- Search and examination of the title and a determination of insurability of title in accordance with sound title underwriting principles. ID Code § 41-2708.
• Plant or other search restrictions -- Plant required for every county ID Code 41-2708
• Plant owner must counter-sign each policy. No countersignature required for direct issuance, IF insurer owns plant in that county – or for a county where no plant exists. ID Code § 41-2702.
• Additional Requirements for REO Searches -- contact state underwriting
• Foreclosure Checklist -- contact state underwriting
• Survey Requirements -- ALTA/NSPS survey required for Extended Owner policy. Extended Loan policy for residential finance does not require ALTA/NSPS survey. For commercial transactions, contact state underwriting.

UPL

• Escrow may fill out prepared forms, AKA Scrivener function. See In re Matthews, 79 P.2d 535 (Idaho 1938).

Vesting

• Tenancy in Common is created with several persons (See. ID Code § 55-104 )unless:
  • acquired in a partnership for partnership purposes,
  • unless declared joint interest (joint tenants with right of survivorship requires an express statement), or
  • unless acquired as community property.
• Per ID Code 15-6-401, when title acquired Husband and Wife, or other evidence of a marital estate, by adding" with right of survivorship" a survivorship estate is created.

Judgment Lien

• The timing of a judgment lien attaching to a property depends on the type of judgment entered. Generally, a judgment may attach from the earlier of the Date and time of recording the judgment in the real property records of the county or the Date of filing of the lis pendens as to the specific property identified.
  • The duration of a judgment lien from a judgment other than for restitution owed to a crime victim (see ID Code 19-5305) or child support continues ten (10) years from the date of judgment unless previously satisfied or stayed by an appeal. ID Code 10-1110.
  • The duration of a judgment lien from failure to pay child support continues ten (10) years after the death or emancipation of the last child. ID Code 10-1110.
• ID Code 10-1110 requires a certified copy of judgement transcript or abstract for the judgement to become a lien.
  • • A lien rising from the delinquency of a payment due under a recorded judgment for child support after July 1, 1995, continues 23 years from the date of judgment unless the judgment was previously satisfied or stayed upon an appeal. However, child support liens will not continue for more than 5 years after the child reaches the age of majority or the child's death whichever first. If more than one child, no more than 5 years after the age of majority or death of the youngest or last remaining child.
• SECTION 6. This act was amended in 2015 and became effective on July 1, 2015, and shall apply only to judgments issued on and after July 1, 2015, by a court of competent jurisdiction. Meaning any judgment prior to July 1, 2015 is valid for only 5 years unless renewed while any judgement July 1, 2015 is valid for 10. (Session laws vol 2, 2015)

Real Property Tax Exemptions

Title 63, Chapter 6, of the Idaho Code provides for those uses of real property entitled to exemptions from property taxes. Hospitals, religion, charitable entities and schools can qualify.

Mortgage/Transfer Tax

• No Mortgage/transfer tax in Idaho.

Spousal Joinder Requirements

• Idaho is a community property state meaning if they divorce, each spouse gets 1/2 of all assets acquired during the marriage. A non-title spouse must join in the execution of deeds/security instruments on all community property.
• Even if not community property, Idaho requires the homestead of a married couple be conveyed or encumbered by both spouses executing the deed of trust or mortgage, even if fee title is vested in only one spouse. ID Code § 55-1007.

Homestead

• ID Code 55-1001.

Abandoned Homestead

• A homestead is presumed abandoned if the owner vacates the property for a continuous period of at least six (6) months. However, if an owner is going to be absent from the homestead for more than six (6) months but does not intend to abandon the homestead, and has no other principal residence, the owner may execute and acknowledge, in the same manner as a grant of real property is acknowledged, a declaration of nonabandonment of homestead and file the declaration for record in the office of the recorder of the county in which the property is situated.
• Id. Code 55-1006.

Power Of Attorney

• Adopted a Statutory Form Power of Attorney as of July 1, 2008. ID Code § 15-12-301. Statute applies to POA's created before, on or after July 1, 2008. ID Code 15-12-403.
• Act presumes durability unless it expressly provides that it is terminated by the incapacity of the principal. ID Code 15-12-140.
  • If the POA was executed in ID before July 1, 2008, it is valid if its execution complied with the law of this state as it existed at the time of execution. ID Code 15-12-106.
  • POA dated prior to July 1, 2008 is not presumed Durable.
• POA require a signature. The signature is presumed to be genuine if the principal acknowledges the signature before a notary public or other individual authorized to take acknowledgments. ID Code 15-12-105.
• Presumed effective unless expressly stated to have effect upon a certain act or condition.
• If POA does not specify a person to determine Incapacity, by statute a physician, psychologist, attorney, judge or appropriate government official (no definition) may provide written opinion. 15-12-109.
• Termination of POA triggers found ID Code 15-12-110.

Construction Liens

• A construction lien shall be perfected not later than ninety (90) days after the completion of the labor or services, or furnishing of materials.
• No lien binds for longer than six (6) months after the claim has been filed unless proceedings are commenced or an extension is given. The lien of a final judgement shall cease ten (10) years from the date the judgement becomes final. ID Code 45-510.
• The priority of construction liens is defined in ID Code 45-512.
• Claims must be recorded within 90 days of the completion of the labor or services, or furnishing of materials. ID Code 45-507.
• A mechanic’s lien of record upon real property may be released upon the posting of a surety bond in the manner provided in these sections. ID Code 45-519 through 45-524.

Instrument Requirements

• None.

Who May Serve As Trustee On Deed Of Trust

• Per ID Code §45-1504, trustee of a trust deed can be a licensed title insurance agent or company authorized under ID law as well as a member of the Idaho state bar, trust institution, or bank association.
• Deeds of trust are limited to properties (1) located within an incorporated city or village, (2) on property not exceeding 80 acres, regardless of its location if that the property is not principally used for the agricultural production of crops, livestock, diary or aquatic goods, or (3) on property not exceeding 40 acres regardless of its location or its use. ID Code § 45-1502(5).
• Where transfer in trust to secure performance of an obligation from the grantor to a beneficiary, a power of sale is hereby conferred upon the trustee to be exercised after breach of obligation to foreclose by advertisement and sale or foreclosure by laws for foreclosure of mortgage properties. ID Code 45-1503.

Time Limitations

• US Judgment Liens -- 20 years, renewable for 20 years
• State Court Judgment Liens -- 10 years from recording-may be renewed. If from failure to pay child support continues ten (10) years after the death or emancipation of the last child. ID Code § 10-1110
• Federal Tax Liens -- 10 years (+30 days); can be refiled
• State Tax Liens -- 5 years (may be continued) ID Code § 45-1906
• Estate Tax Lien -- Federal 10 years
• State Inheritance Tax Liens --
• Mechanics Liens -- Lien must be filed w/i 90 days following completion of improvements-lien good for 6 months unless enforcement proceedings commenced ID Code § 45-507 ID Code § 45-510
• Financing Statements -- 5 years ID Code § 28-9-515
• Mortgages -- 5 years from maturity date. If no date is discernible, the date of the accrual of the cause of action giving rise to the right to foreclose is the maturity date ID Code § 5-214A
• HOA Liens -- 1 year (can be extended 1 additional year) ID Code § 45-810
• Condominium assessments --
• Child Support Liens -- No lien shall continue more than 5 years after date of majority or death of child. If more than one child, lien continues until 5 years after the date of majority of youngest child. Explained here.
• Irrigation Liens
• Property Tax Liens
• Adverse Possession --
  • 3 years ID Code § 43-2205
  • Continues until Paid ID Code § 63-206
  • 20 years continuous use ID Code § 5-210

Odd Stuff

• Idaho is a Race-Notice state
• Determination of Insurability: Prohibited Risks – Rebates
• ID Code § 41-2708(4) – Forwarding Fees – No person forwarding or directing title insurance business to a title insurer or title insurance agent in Idaho, nor such insurer or agent receiving such business, shall give or receive anything of value, or a portion of the premium, therefor.
• Minerals: Should include a mineral exception as a standard exception.
• The Idaho Rate Manual establishes a charge for the cancellation of a commitment at 20% of the basic schedule of charges if cancelled prior to closing and at 80% of the basic schedule of charges if cancelled after closing.
• A title insurer or agent may reconvey a deed of trust if the obligation secured by the deed of trust has been fully paid by the title insurer or agent or if the title insurer or agent has satisfactory evidence of the full payment of the obligation secured by the deed of trust. See ID Code § 45-1202. Process requires notice of intent to release or reconvey with copy of reconveyance. Idaho Stat. 45-1203. 60 day objection period after mailing. ID Code § 45-1204.
• Usury coverage and Truth in Lending coverages are prohibited in Idaho. Idaho Admin. Code r. 18.05.01.012

Probate

• Idaho does not have a separate estate tax or inheritance or gift tax.
• WFG will consider accepting an Affidavit of Heirships in lieu of a formal probate proceeding for a conveyance of heirs under the following considerations:
  • Where there are no creditors or a minimal number of creditors
  • Where heirs are readily ascertainable
• Summary Administration
  • Available probate alternative
  • Pursuant to ID Code 15-3-1205 when a surviving spouse is the sole beneficiary, Summary Administration is available to vest in surviving spouse
    • Must assume and be liable for any and all indebtedness
    • Must review court documentation to ensure followed statutory process
      • Motion by petitioner leaving a surviving spouse as the sole devisee or heir. Include will if there was one.
      • Review petition & confirm they remained sole devisee with no objections.
      • Affidavit must be submitted.
      • Liens must be paid out of the closing if a sale or refinance.
• Small Estates - ID code 15-3-1203 and 1204.
  • If the value of the entire estate less liens is not more than homestead allowance less administration costs and reasonable funeral/hospital costs, the personal representative may immediately, without notice, disburse the estate to the persons entitled to and file a closing statement with the requirements listed in ID Code 15-3-1204.
• Intestate succession
  • Spousal rule: if no surviving issue or parent, spouse gets entire estate. If no surviving issue but a parent, spouse gets 1/2 of the intestate proceeding estate (50%). If surviving issue, spouse gets 1/2 of the intestate proceeding estate. But if community property, the community property passes to the surviving spouse. ID Code § 15-2-102.
  • Requirement that the heir survive the decedent by 120 hours. ID Code §15-2-104.

Escrow

• Idaho Escrow Act makes it illegal to conduct any escrows from within the state of Idaho or any escrow transaction effecting the sale, transfer, encumbrance or lease to another person of any real or personal property located in Idaho without a license. ID Code 30-903

Property Tax

• Taxes for the first and second half of the year are due on November 20. Taxes for the first half year are delinquent if not paid by December 20. Taxes for the second half of the year remain due until paid and are delinquent if not paid by June 20 of the following year. ID Code § 63-903.

Closing Protection letters

• See ID Underwriting References.

Witness Requirements

• A witness is not required on a deed or security instrument, but a document must be properly acknowledged for recording. ID Code § 55-805.

• Idaho Recorder's Manual

Purchase Money Financing

• ID Code § 45-112 – Priority of Purchase Money Financing – Deed of Trust/Mortgage given for the price of real property at time of conveyance has priority over all other liens against the purchaser.
• Applies whether a deed of trust or mortgage is used.