ID Underwriting Summary

Search/Exam

• Minimum Search Requirements -- No act; search and examination of the title and a determination of insurability of title in accordance with sound title underwriting principles. ID Code § 41-2708.. DOI – 60 years or as necessary
• 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 owners plant in that county – or for a county where no plant exists. ID Code § 41-2702.
• Additional Requirements for REO Searches -- No
• Foreclosure Checklist -- No
• Special Searches Required (Code, HOA, Utilities)? --
  • See Child Support Judgment.
  • HOA’s – yes
  • Irrigation - yes
• Survey Requirements --

UPL

• No state definition of 'practice of law' or 'unauthorized practice of law'; but test for practice of law found in case law. summary found here

Vesting

• Tenancy in Commons is created with several persons unless:
  • acquired in a partnership for partnership purposes,
  • unless declared joint interest, or
  • unless acquired as community property. See. ID Code § 55-104
• The timing of a judgement lien attaching to a property depends on the type of judgement entered. Generally, a judgement may attach from the Date of filing of the lis pendens or the Date and time of recording the judgement with the county clerk and recorder.
  • The duration of a judgement lien from a judgement other than for child support continues five (5) years from the date of judgment unless previously satisfied or stayed by an appeal.
    • 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.

Property Tax

• Property taxes shall be due in full on or before December 20 of the year in which the property taxes are levied. The property taxes may be paid in full or two halves, the first on or before December 20 with a grace period to June 20 for the second half if the first half is totally paid. ID Code § 63-903.

Tax Exemptions

Hospitals

If real property, not currently exempt from taxation, is being prepared for use as a hospital, the value of the bare land only shall be taxed while the property is being prepared for use as a hospital. If, as of the property tax assessment date, construction has not been abandoned, all improvements to and construction on the real property, while it is being prepared for use as a hospital, shall be exempt from taxation. Upon completion of construction and obtaining a certificate of occupancy, the entire real property shall be exempt from taxation subject to requirements in the statute.

In no event shall improvements to property that is being prepared for use as a hospital qualify for an exemption from property tax for more than three (3) consecutive tax years Id. Code 63-602D(3).

Mortgage/Transfer Tax

• No Mortgage/transfer tax in Idaho.

Spousal Joinder Requirements/Homestead

• Idaho is a community property state. A non-title spouse must join in the execution of deeds/security instruments on all community property. Custom is to have a non-title spouse to join in deed execution or separately convey his/her interest.
• Idaho requires the homestead of a married couple be 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.

Power Of Attorney

• Adopted a Statutory Form Power of Attorney. ID Code § 15-12-301.

Construction Liens

Overview

Construction liens in Idaho are also referred to as "Mechanics'" and "Materialmen's" liens throughout the Idaho Statutes.

Sources

ID Code §§ 45-501 et seq.

Authorized Claimants

For the purposes of construction of any improvement upon real property at the instance of the property owner or construction agent of the owner, the following people may file a construction lien:

• Any person performing labor related to the construction;
• Any person providing supplies or materials to be used in the construction;
• Any person renting, leasing, or otherwise supplying of equipment for the construction; or
• Any professional engineer or licensed surveyor who establishes or marks the boundaries of, prepares maps, plans, or specifications for, or inspects, tests, or otherwise performs any other architectural or engineering services for the improvement of real property.

ID Code § 45-501

Lien Priority

A perfected claim of lien shall be prior to any lien, mortgage, deed of trust, or other encumbrance which attached to the land after or was unrecorded at the time of commencement of labor, professional services or the furnishing of materials or equipment.

ID Code § 45-506

Notices and Registries

Idaho statutes do not require notice of a lien other than the recording and service of the lien claim itself.

Perfecting a Lien

A construction lien shall be perfected not later than ninety (90) days after the completion of the labor or services, or furnishing of materials.

To perfect a construction lien, a claim must be filed with the recording officer of the county in which the real property is located.

The claim must contain:

• A statement of demand;
• The name of the owner, if known;
• The name of the person by whom he/she was employed or to whom he/she furnished materials; and
• A description of the property, sufficient for identification.

The claim must also include a verified oath by the claimant, or someone authorized to act on their behalf, to the truth and accuracy of the claim.

A copy of the claim shall be served on the owner no later than five (5) business days following the filing of the claim of lien.

ID Code § 45-507

Enforcement Deadlines

A construction lien encumbers real property for six (6) months after the claim of lien has been recorded with the county, unless a lawsuit is filed to enforce the lien within that time frame.

If the claim of lien lists a payment on account or extension of credit given with an expiration date, the lien will then encumber the subject real property for six (6) months after the date of such payment or expiration of the extension.

A final judgment on a lien will expire ten (10) years from the date the judgment becomes final.

ID Code § 45-510

Releases

1. Bond

A property owner may remove a perfected construction lien from the subject property by obtaining a surety bond. The bond must be 1.5 times the lien claim amount. ID Code § 45-519

The debtor must file a petition with the district court where the property is located in order to release the lien via the bond. A hearing on the petition will be held at least five (5) days but not more than ten (10) days after the entry of the order granting the hearing. Service on the claimant at least two (2) days prior to the hearing is required. ID Code § 45-520

Given the bond meets the statutory requirements, the court will enter an order releasing the construction lien. Upon entry of the order, the lien is released of record in its entirety and the real property is released from the encumbrances of the lien. There is no appeal from this order. ID Code § 45-521

2. Release

A release of a construction lien may also be recorded with the county. It must reference the original construction lien recording document information and property that is subject to the lien. It must state the lien is paid in full and that the construction lien is released. It must also be signed by the original lien claimant.

Foreclosure Review

• Idaho provides for a non-judicial foreclosure of a Trust Deed (aka Deed of Trust) with no right of redemption after the Sale on the courthouse steps. ID Code §45-15
• Judicial Foreclosure is also available and Redemption Rights are preserved, as is ability to obtain deficiency judgment. ID Code § 6-1.

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).

Time Limitations

• US Judgment Liens -- 20 years, renewable for 20 years
• State Court Judgment Liens -- 10 years from recording-may be renewed. 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 ID Code § 5-214A
• HOA Liens -- 1 year (can be extended 1 additional year) ID Code § 45-810
• Condominium assessments --
• Child Support Liens -- See (a) below
• 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

• Child Support Liens - Filed in Boise at the State level – have to search Boise State Records. No lien shall continue more than 5 years after date of majority or death of child. Valid reason NOT to show: Decree (Clerk will not certify) from the Clerk of the Court showing paid. Child Support payments are collected by the Clerk of the Court. If more than one child, lien continues until date of majority of youngest child. See "Vesting" above.
• 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 is not available in Idaho.

Probate

• Idaho does not have a separate estate tax or inheritance or gift tax.
• 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 estate. If surviving issue, spouse gets 1/2 of the estate. But if community property, 1/2 of community property belonging to the decedent 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.

Abandonment

Overview

Abandonment generally means giving up rights to something. Abandonment can refer to a few different things depending on the context.

Abandoned Assets in a Trust

A Trustee has the power to abandon a trust asset or any interest therein.

Id. Code 68-106(c)(7).

Abandoned Highways or Public Rights-of-Way

If the highway or public right-of-way parcel to be abandoned and vacated has a fair market value of two thousand five hundred dollars ($2,500) or more, a charge may be imposed upon the acquiring entity, not in excess of the fair market value of the parcel, as a condition of the abandonment and vacation. However, no such charge shall be imposed on the landowner who originally dedicated such parcel to the public for use as a highway or public right-of-way. If the highway or public right-of-way was originally a federal land right-of-way, said highway or public right-of-way shall revert to a federal land right-of-way.

Any order or resolution is to be recorded in the county records and the official map of the highway system is to be amended as affected by the abandonment and vacation.

Id. Code 40-203(1)(h)(i-j).

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.

Abandoned Mines

• Idaho Abandoned Mine Reclamation Act 47-1701

Abstracters

Overview

• When one purchases real property, it is paramount that the seller has a legal right to sell the property, that no other person or entity has a legal right to the property and that the boundaries of the property to be sold are mutually agreeable to the parties to the transaction. An abstracter researches the property and reports on his/her findings to all parties to the transaction.
• A title abstracter is another name for a title examiner.
• Id. Code 54-101 et. seq.

Research

• As stated above, an abstracter will research a parcel of property that one party wants to sell to another. The research will involve searching the chain of title going back in time to make sure the current seller has the legal right to sell the property and that there are no other people or entities that have an interest in the property. This search will also entail comparing legal descriptions to make sure the property being sold has the correct description.

• An abstracter will research whether there are any encumbrances against the property. They look for judgments, conditions, restrictions, mortgages or trust deeds, and any other liens against the property. They also look for any easements affecting the property.

• An abstracter may also work with a local surveyor and tax assessor to verify that the parcel of real property described in the documents is correct.

Knowledge

• Abstracters need to pay attention to detail, have strong organizational skills, the ability to explain their findings and a basic understanding of real estate law. They may be called upon to explain their findings to realtors, lenders, buyers, sellers, contractors and attorneys. They may also need to work with surveyors and other parties to assist in resolving disputes.

Reports

• Abstracters prepare a title report that includes the current vesting, the property's legal description, any liens or judgments and any other issues of concern.

Certified Abstracters

• In Idaho, if one is to act as an independent abstracter, a bond of $10,000 is required. Once the bond is paid, a Certificate is issued. The bond and certificate are valid for five (5) years. Id. Code 54-101, et. seq.

• Title examiners also have the option to obtain licensure by the National Association of Land Title Examiners and Abstractors (NALTEA).

Editing closing and escrow

• Idaho Escrow Act

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.

Closing Protection letters

CPL Form

• Latest CPL Form Filing Date: 03-02-2016
• Filing Requirements: Add State Contact Info
• Current From: 3172900
• ALTA Version: 2015

Rates

State Mandated Rates

• Buyer:
• Seller:
• Lender:
• Borrower:

WFG Rates

• Buyer: $25.00
• Seller: N/A
• Lender: $25.00
• Borrower: $25.00

Notes

• Notes: I.C. 41-2714, Rate & form filing required, no filing found in WFGunderwriting
• Rate Checked: 05-06-2016
• By: ABF
• Manual Date: PROBLEM

Witness Requirements

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

Idaho Recorder's Manual

Escheat

Sources

ID Code § 14-501 et seq. Unclaimed Property Law.

Recipient Office

State Treasurer

Reporting

• Time Period: 5
• Due Diligence Amount: 50.01
• Due Diligence Dates: Not more than 120 day prior to report
• Aggregate Amount: Not Permitted
• Report Period: 7/1-6/30
• Report Due Date: 11/1
• Negative Reporting: Yes, effective 2016.

Dormancy Fee

Only for safe deposit boxes or other safekeeping repository.

Web Site

http://www.sto.idaho.gov/unclaimedproperty/

Good Funds

Wet or Dry Settlement

Dry

Definition

Escrow officers may only place "collected funds" in their trust account. "Collected Funds" means: (a) cash (currency); (b) wired funds when unconditionally received by the escrow agent; (c) when identified as such: (1) cashier's check; (2) certified check; or (3) teller?s check (official check) when any of the above are unconditionally received by the escrow agent; (d) U.S. Treasury checks, postal money orders, federal reserve bank checks, federal home loan bank checks, State of Idaho and local government checks, local or Idaho on-us checks (meaning checks drawn against the same federally insured financial institution or branch as the title agent's own depository), or local third party checks on the next business day after deposit; (e) local personal or corporate checks on the second business day after deposit; and (f) non-local State and government checks, non-local on-us checks, non-local personal or corporate checks or non-local third party checks on the fifth business day after deposit. For purposes of this section a deposit is considered made on (1) the same day the item is delivered in person to an employee of a federally insured financial institution, or (2) the first business day following an after business hours deposit of an item to a federally insured financial institution. ID Admin. Code 18.01.25.011.010(a)(ii).

Requirements

Notwithstanding any agreement to the contrary, no disbursement of funds or delivery of documents from an escrow for recording or otherwise may be made unless the escrow contains a credit balance consisting of collected funds, other than funds of the escrow agent or its affiliates, sufficient to discharge all monetary conditions of the escrow. The requirement of collected funds does not apply to collection or long term escrow. ID Admin. Code 18.01.25.011.010(b)(i).

Purchase Money Deeds of Trust

ID Code § 45-112 – Priority of Purchase Money Mortgage – Mortgage given for the price of real property at time of conveyance has priority over all other liens against the purchaser.

ID Code § 45-112 Mortgage: The written agreement pledging property to a creditor as collateral for a loan. Property: includes both real and personal property. See ID Code § 73-114 Real property: Land, and all immovable fixtures erected on, growing on, or affixed to the land. A mortgage given for the price of real property, at the time of its conveyance, has priority over all other liens created against the purchaser, subject to the operation of the recording laws.