FL Underwriting Summary

Search/Exam

• Reasonable search required by Statute. No minimum period.
• Marketable record title act is based on root of title at least 30 years back.
• Short searches are customary.

UPL

• Title agent may prepare documents required in order to clear title incident to issuance of title insurance. Florida Bar v. McPhee, 195 So.2d 552 (FL 1967)
• Title agent may close and disburse incident to title insurance.
• A title agent may perform searches and examinations, sign documents, close transactions and disburse escrow funds.
• A non-attorney may not render an opinion of title.

Vesting

The following tenancy types are recognized:

• Individual

• Tenancy by the entireties (Florida has constitutional and statutory prohibitions on recognition of same-sex marriage, so same-sex couples don’t qualify for treatment as entireties property.)

• Joint tenancy with right of survivorship

• Tenancy in common (default)

• Life estate

• Enhanced life estate (Lady Bird).

A deed into trust which recites: that the trustee has full “power and authority to protect, to conserve, to sell, to lease, to encumber, or otherwise to manage and dispose of the real property” (or similar language) frees next examiner from need to review the trust or confirm compliance with internal trust requirements (unless trust or details recorded or provided), or the use of funds. In 2013, this was expanded to apply to all trusts, not just land trusts.

Acceptable instruments for transferring ownership on real property: Warranty Deed (either General or Special) however other forms of deeds exist such as, Quit Claim Deeds, Fee Simple Deeds, Trustees’ Deeds, Personal Representative Deeds.

Property Tax

• Property taxes may be paid beginning November 1 of the year for which assessed through March 30 of the year after. Checks should be made payable to the County Tax Collector.

• Property taxes become delinquent on April 1st of the year following the tax year.

• Property taxes become a lien on January 1st of the year of taxes, but the amounts owed for that year are not known until the assessed values are certified and the tax rate/millage is finalized (usually about August). They are then payable beginning in November.

• Some counties, municipalities, and local and special assessments are billed separately, most are billed on a unified bill through the county tax collector. Community development districts may or may not be billed through the tax collector.

• Property owners may elect to pay taxes quarterly. Examiner should review tax collector information closely and be sure “paid” is for entire year and not quarterly installment.

Mortgage/Transfer Tax

• Documentary Stamp Tax - Deeds $0.70 per $100.00 (Dade County $0.60 per $100.00)

• Miami-Dade County charges an additional Documentary Stamp Surtax of $0.45 per $100.00 on other than single family residence

• Documentary Stamp Tax - Mortgages $0.35 per $100.00

• Intangibles - $0.20 per $100.00 on the amount financed charged on mortgages

Spousal Joinder Requirements/Homestead

Homestead rights pertain to primary place of residence only and not for second homes, investment or commercial properties in Florida.

On conveyance or mortgage of homestead (or property acquired to become homestead) the non-titled spouse (if any) must sign and have their signatures acknowledged and notarized on the deed conveying homestead and “join” in the mortgage or other security instrument of homestead property. Even if signed at different times and places, the joinder must be in a single instrument – not two deeds or mortgages, one from each spouse. Joinder in a mortgage is best accomplished through a separate limited “joinder” statement at the end of the mortgage as simply signing the mortgage can make the non-title spouse an obligor on the note.

This is a requirement before any potential homestead interest may be validly conveyed or mortgaged. (see Art X 4 Fla. Const.). Failure of joinder on homestead makes the deed void and the mortgage voidable.

To show record compliance with the joinder requirement, all deeds (not just homestead deeds) should recite the marital status of grantors (best practice is both grantors and grantees) and the homestead or non-homestead status of the property. Suggested Language:

Grantor represents and warrants that the Real Property is neither the homestead or residence of myself or a member of my family or any person to whom I’m obligated to provide support, nor is the Real Property adjacent to the homestead or residence of myself or a member of my family

A deed of residential property without marital status or non-homestead, by a married person without spousal joinder or non-homestead representation, is considered a title defect. It may be cleared of record by other affidavits.

Release

• Acceptable instruments to release mortgages: satisfaction of mortgage or a partial release of mortgage.

WHO MAY SERVE AS TRUSTEE ON DEED OF TRUST?

• N/A – Florida is a Mortgage State operating under a lien theory

Power of Attorney

Florida power of attorney requires 2 witnesses and notary acknowledgement. §709.2105 Power of Attorney executed out of state, not meeting the requirements above, may be relied on for conveying non-homestead property if the POA and its execution complied with laws of state where executed. WFG requires an attorney’s opinion from the state of execution concerning the due execution and validity of the power of attorney §709.2106(3) or approval from WFG Underwriting. Durable powers of attorney continue after incompetency. However, all POAs cease to be exercisable if petition to determine incompetency is filed as to the principal, until declared competent or court approves use of POA. §709.2109(3)

POA may designate multiple attorneys in fact. Unless POA says otherwise, either may act alone. §709.2111. Agent may only exercise authority specifically granted in the power of attorney and any authority reasonably necessary to give effect to that express grant of specific authority. General provisions in a POA which do not identify the specific authority granted, such as “to do all acts that the principal can do” are not express grants of specific authority and do not grant any authority to the agent. §709.2201

POA may be used for mortgage or conveyance of homestead property, if joined by spouse. Spousal joinder may be accomplished by POA. §709.2201. Out of state

POA without two witnesses may not be used to convey homestead property. See §689.111.

Construction Liens

TO BE ADDED

FORECLOSURE CHECKLIST

CASE No.: _______________________

Mortgage recorded in Book/Page: ____________________County: ________________________

Verify Legal Description in Mortgage vs LP:

Complaint filed: ____________ Legal Correct? Filed in correct county?

Does it allege execution/delivery of Note/Mortgage?

Copies of Note/Mortgage attached to Complaint?

Complaint alleges default on part of borrower & states amount due and payable?

Mortgage to be foreclosed includes lands in two or more counties? Consult with underwriting

Plaintiff is Record holder of Note and Mortgage?

DEFENDANTS: INTEREST: TYPE OF SERVICE: RESPONSE: COMMENTS:

___________________________________________ _______________________ __________________ ____________ ____________________________________________________________________

___________________________________________ _______________________ __________________ ____________ ____________________________________________________________________

___________________________________________ _______________________ __________________ ____________ ____________________________________________________________________

___________________________________________ _______________________ __________________ ____________ ____________________________________________________________________

___________________________________________ _______________________ __________________ ____________ ____________________________________________________________________

___________________________________________ _______________________ __________________ ____________ ____________________________________________________________________

___________________________________________ _______________________ __________________ ____________ ____________________________________________________________________

SERVICE BY PUBLICATION: Diligent Search Affidavit? If yes, does the affidavit recite supporting facts? If no, consult underwriting.

Guardian/Attorney/Executor Ad Litem appointed?

Notice of Action published once during each week for 2 consecutive weeks in county where court with jurisdiction in action located?

Proof of Publication correct:

Proof of publication shall be made by affidavit of the owner, publisher, proprietor, editor, business manager, foreman or other officer or employee of the newspaper having knowledge of such publication. The affidavit shall set forth or have attached a copy of the notice, shall set forth the dates of each publication and otherwise comply with the requirements of law. Fla. Stat. 49.10(2)

If addresses known, Notice of Action mailed within 10 days after making or posting the Notice and duly noted on docket?

SERVICEMEMBERS CIVIL RELIEF ACT:

Is Defendant member of uniformed services? If no, Affidavit obtained stating Defendant not in military?

If yes, was Mortgage Foreclosure action initiated during, or 90 days after, the serviceman’s duty?

Court Order authorizing foreclosure with return made and approved by court? Did Defendant make appearance?

If no, Attorney ad Litem appointed? Did Plaintiff file Affidavit (1) stating if Defendant is in military service and showing supporting facts; or (2) statement that Plaintiff unable to determine whether or not Defendant is in military service?

If in doubt, consult underwriting.

Record owner deceased? Yes – check with underwriting

LIS PENDENS: Filed date ______________________ Recorded date _____________________________ in Book/Page _______________________________

Is record owner bankrupt? Stay lifted?

Names of owner (s) of real property correct?

Are all Defendants listed above named? Any unrecorded lien holders intervene in foreclosure? If yes consult with underwriting.

FINAL JUDGMENT OF FORECLOSURE: Filed date ______________________ Recorded date_____________________________ in Book/Page _______________________________

Contains: Amount due Plaintiff, recitation that plaintiff holds lien superior to interests of defendants and legal description correct?

Time, date place and sale given?

If Final Summary Judgment after 7-1-2006:

                   Does it contain Statement required by Section 45.031(1)(a), Fla. Stat.? 
                   Does it contain Statement required by Section 45.031(1)(b), Fla. Stat.? (required if property being foreclosed qualified for homestead tax exemption on most recent tax roll)

Any additional requirements listed in Final Judgment?

Notice of Sale properly published? (Right County, right legal) . If after 7-1-2006, contains statement that any person claiming interest in surplus other than owner as of date of Lis Pendens must file claim within 60 days after sale?

Is Foreclosure Sale 20 - 35 days from date of Final Judgment? If more than 35 days, did Plaintiff or Plaintiff’s Attorney consent?

Certificate of Sale served to each party and contains certification as to publication of Notice of Sale?

Any objections filed within 10 days of sale? If yes, Hearing and Order entered disposing of objections?

Was Bid or Certificate of Sale Assigned? If yes, to who?

CERTIFICATE OF TITLE Recorded ______________________________in Book/Page _____________________________ to ___________________________

Is legal correct? (Grantee in Certificate of Title same as Successful Bidder or assignee of Assignment of Bid)

Any of the above Defendants the United States of America or one of its affiliated agencies? If interest is for Junior Mortgage, did it assert its right of redemption? If no, and they were properly served, right of redemption is waived. If yes, take exception for their right of redemption.

If interest is Junior Tax Lien or Other Non-Mortgage interest, did it waive its right of redemption (or has time period expired)? If no, take exception for their right of redemption made? Note: redemption period is 120 day period for Tax Liens; 1 year for other interests

If one-to-four family property take exception for Federal “Helping Families Save Their Homes Act of 2009”

WHEN IN DOUBT CONSULT WITH UNDERWRITING!!

Instrument Requirements

• All original signatures must have names typed or printed under signature line, including witnesses §695.26

• The address of each party is required to be shown in the document. §695.26(a) & (f)

• The name and post-office address of the natural person who prepared the instrument or under whose supervision it was prepared appear on the instrument. §695.26(b) By custom this is in the upper left corner of the first page.

• While is not required for a valid deed, customary practice is to cite consideration (not the full amount paid) such as, $10.00 and OVC or Love and Affection

• The preparer does not have to be an attorney unless the requirement for such document comes from the title company whom issued the commitment

• On a deed, lease for over 1 year or other conveyance, two witnesses are required who are not parties to the conveyance instrument. §689.01 Of the two (2) witnesses one may be the notary but MUST also sign on the witness line as well as the notary acknowledgement. Two witnesses are not required for a deed by a corporation, executed under the corporate seal its president or any vice president or chief executive officer. §692.01 No corporate resolution is required. The foregoing does not apply to deeds by an LLC.

• No witnesses are required on a mortgage (although it is the better practice), lien or release of lien – except that condo and HOA lien releases require 2 witnesses.

• 3" x 3" blank space is required at the upper right of the first page and a 1” by 3”-space at the top right-hand corner on each subsequent page are reserved for recording data. §695.26(e)

• Certificate of acknowledgment before a notary public who is not a party to the conveyance, Notary's stamp is required to be imprinted on the document.

Time Limitations

Florida
TIME LIMITS

Type	Duration	Release by:	Notes
Judgments	10 years from date of recording in land records, may be renewed for additional 10 years by re-recording. §55.10 Not to exceed a maximum of 20 years from date of entry of judgment. §55.081; §95.11(1)	Satisfaction of Judgment by judgment creditor or assignee, attorney of record.   Transfer to lien by depositing with clerk. §55.10(5)	Prior to July 1, 1987, the term of a judgment lien was 20 years from entry. Between July 1, 1987 and June 30, 1994, it was 7 years from recording with 7 year renewals for up to 20 years total. 7-7-6.
Mortgages	The lien of a mortgage terminates 5 years after the date of maturity if the final maturity date is ascertainable from the record. §95.281   If maturity is not ascertainable (or a demand note), the lien terminates 20 years after the date of the mortgage. §95.281	Record holder of the mortgage. As an underwriting policy, WFG will rely on satisfactions of an institutional mortgage executed by a recognized institutional servicer, or another institutional lender purporting to be a non-record assignee or trustee of a purported assignee.	Determination of maturity date and ascertainability will be affected by recorded extension agreements and modifications.   §95.281 does not apply to mortgages given by any railroad or other public utility corporation
State Tax Liens	The general rule, applicable to most types of Florida taxes is 20 years from the later of assessment, delinquent or recording of warrant. §95.091(1)(b).	Florida Department of Revenue	Each type of Florida tax has its own special rules that are beyond this summary. The Florida Admin Code still includes inconsistent references to a shorter period.   Discuss specific deviations with Underwriting
IRS Liens	Tax lien may be refiled for up to 10 years and 30 days from date of assessment (not date of filing). 26 U.S.C. §6502 26 U.S.C. §6323(g)(3)   Recorded notice generally shows end of refiling period	Release of lien by IRS	Prior to November 5, 1990, refiling period was 6 years and 30 days from the date of assessment.   Neither Florida homestead nor Tenancy by Entireties will protect against Fed. Tax lien.   Need to search G.I. outside of time of ownership for possible renewals
Condo Assoc. Lien	1 year (after filing the lien) unless suit commenced F.S. 718.116	Condo Assoc	Even though the effect of the recorded lien may be ignored 1 year after recording (unless suit is filed), there is a continuing lien for all unpaid condo assessments. Unlike normal Bankruptcy extension, the statute of limitations is extended by the “amount of time” during which the association is prevented from enforcing the lien. §718.116(5)(b).
HOA liens	No statutory time limit. F.S. 720.3085     F.S. 95.11(2)(B) provides for 5 yr. to recover real property based on obligation founded on written instrument	HOA	Lien relates back to time of recording of restrictive covenants if Covenants provide.   Foreclosure: Assoc needs to be named unless. Covenants specifically state that lien does not attach before recording
Construction Liens	Notice of Commencement expires 1 year after date of recording, unless a longer period is specified. §713.13. Claim of lien valid for 1 year after recording unless suit filed to enforce	Release of lien by party filings or recorded Notice of Termination, accompanied by contractors final affidavit and full payment affidavit and running of 30 days from recording. §713.132
Code Enforcement Board Liens	20 years from date of recording	Municipality or County Board   “Order acknowledging compliance” is not a release of the lien	Liens under 162.09 affects all property owned by violator; check relevant ordinance for specifics of other types of liens.   Resource: Municode.com
Alt. Code Enforcement Liens	Determined by Ordinance. Max of 20 years	Determined by Ordinance	162.03 contemplates local variations from chapter 162. Currently being tested.   Resource: Municode.com
Hospital Claim of Lien	Varies	Hospital	Usually are only against proceeds of judgments, awards or settlements; So need to read carefully
Attorney Charging Lien	5 years if notice is not reduced to judgment. If reduced to judgment, same as general judgment lien. §55.10. 10 years from recording, with 10 year renewal, to Max of 20 years after entry.	Attorney or Clerk of Court	Only valid against the property involved in the litigation   Case must involve real prop. Most often found in Divorce, Quiet Title, Adverse Possession & Probate   Caution: Charging liens are sometimes reduced to final judgment in other lawsuits. If you find notice of a charging lien, a careful review of the docket and underlying court filings is in order.
Support Liens   For either marital or child support	Same as general judgment lien. §55.10. 10 years from recording, with 10 year renewal, to Max of 20 years after entry.   However, §55.204(2) suggests a 20 year term for support liens in the portion of this chapter addressing liens on personal property.	Depository (Clerk of Court or Department of Revenue) if paid through those channels or person (usually the ex-spouse) directly receiving support	Created under: F.S. 61.14; Part VI of Chapter 88, F.S. (as to out of state orders)   Caution: if temp support order was issued, final decree may show arrearages and therefore recording of Final Judgment may provide notice of Support Lien   Do not rely on homestead status or homestead procedures   “Certified” statement of delinquency is sufficient if signed by clerk
Welfare Liens	Life of person named plus 3 years	Dept. of Health or Dept. of Children and Family Services	F.S. 402.33
Public Defender Lien	20 years after entry. Note, in spite of the references to §55.10 in various portions of this statute, the re-recording requirement does not apply. §938.30(8).	Clerk of Court may release or subordinate   State Atty may not.	F.S. 938.29 lien attaches to all real property owned by D (or parents) in county;   May be enforced like general judgment   May not be enforced against homestead   Notice filed; Does not need to be certified
State Criminal Restitution & Fine Liens (State)	20 years F.S. §960.294 (4); §938.30(8).	Victim (if payable directly to victim) or State Attorney	F.S. 775.089 and F.S. 960.294 Lien on all property owned by Defendant   Not dischargeable in bankruptcy;   Becomes lien on subsequently acquired property, if not satisfied   Does not need to be certified
Restitution & Fine Orders (Federal)	Later of 20 years from entry or 20 years from release from prison or death	US Attorney	Lien in favor of the US on all property and rights to property. 18 U.S.C. 3613   Not dischargeable in bankruptcy   Enforceable in same manner as Fed tax lien
RICO Liens	6 years; may be extended for additional 6 years	State Attorney	F.S. 895.04 RICO lien notice may be filed at any time during the pendency of a proceeding for a RICO violation   Filing of notice creates lien on all real property and right to real property   Does not attach to homestead, Does not need to be certified
PR Lien on Homestead Property	Discharge of P.R: or Court termination; or One year from date of filing unless suit is filed to foreclose;	Express satisfaction of lien by P.R. discharge by court, or P.R. Deed of the property.   Note: Order Determining Homestead does not release;	Lien on homestead created in favor of PR as to estate of decedent who dies after 7/1/03 F.S. 733.608   Secures all sums advanced by PR to Preserve, Maintain, Insure, or Protect Homestead plus fees and costs   May be foreclosed like mortgage;
Brokers’ lien for unpaid Commercial Real Estate Leasing Commissions	2 years from filing unless claiming commissions on automatic renewals; then 10 years with possibility of a 10 year extension   Term discernible from Recorded Notice	By Broker or Bonding off. F.S. §475.811	F.S.§§475.800 - .813 Created by recorded Notice & Notice delivered to closing agent prior to closing   Can apply to Landlord or Tenant interest in property, depending on contract.   Lien notice does not constitute notice of the underlying lease. F.S. §475.807(9)
Equitable liens	Since these are non-record interests, measuring is difficult. Max time for filing suit is 5 years if founded on a written instrument. 4 years otherwise.	Party claiming lien	Examples:   Ex: Party in good faith makes improvements on another’s property   Ex: Seller enters into contract to sell and wrongly keeps buyer’s deposit   Ex: Builder mortgages property while holding deposits from buyers   Because of factual variations and difficulty of determining, should be discussed with Underwriting in all cases.

 

Odd Stuff

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1. Mineral Rights. In Florida, a mineral or subsurface reservation creates a separate chain of title, so the subsurface interest is not cut-off by Florida’s marketable record title act. All mineral reservations (unless specifically stated) include a right of entry onto the surface estate to explore and remove. This interest may in some cases be eliminated by the Marketable Record Title Act. See §704.05, however MRTA does not eliminate interests in the nature of easements if used in whole or in part. §712.03(5). A great many mineral reservations were filed in the late 1800s and early 1900s.

2. Depression Era Tax Deeds (Murphy Act) During the Great Depression, the State of Florida took back a great many parcels for non-payment of taxes (by some estimates approximately 1/3 of the land mass of the state). When it reconveyed these, the conveyances reserved ½ of the petroleum and ¾ of the other minerals; and a 200 foot right of way, 100 ft each side of any State Road existing on the date of the deed.

3. Secret Mineral Rights Under § 270.11, F.S., all conveyances from the Trustees of the Internal Improvement Trust Fund or State Board of Education (the Governor & Cabinet in different capacities) and after 1986, from any local government , Water management district or other agency are required to reserve an undivided 3/4 interest in all of the phosphate, minerals and metals and an undivided ½ interest in all the petroleum. These reservations are automatic and do not require an express reservation on the face of the deed. See Caldwell v. Kemper, 31 So.2d 555 (1947). After June 15, 2001, the selling agency has discretion to not make a reservation, which shows as a statement to the contrary in the conveyance.

4. Release of Rights of Entry. The right of entry for mineral and petroleum held by the Trustees of the Internal Improvement Trust Fund or Board of Education (but not other agencies or subdivisions) was released “as to any parcel or property that is, or ever has been, acontiguous tract of less than 20 acres in the aggregate under the same ownership.” §270.11

5. Surveys are Required. Pursuant to a series of letters from the Office of Insurance Regulation, In order to remove the survey exception and/or issue form 9 coverages, a survey is required. We are permitted to rely on older surveys and an affidavit of no –changes.

6. Non-Tidal Sovereignty Lands -- those which were beneath navigable waters on March 3, 1845 -- continue to be owned by the State of Florida, Trustees of the Internal Improvement Trust Fund, even drained, filled and/or conveyed by the state without reference to the water body.

7. Florida Statute 701.041 authorizes an officer or an appointed agent of a title insurer to execute a certificate of release for a mortgage in the event the mortgagee fails to record a satisfaction of mortgage and release after receiving a payment in full of the loan secured by the mortgage in accordance with a payoff statement furnished by the mortgage servicer. In practice, this is only done to resolve title claims.

Updated 8/26/14 by Alan B. Fields