California rulings weaken title insurance protection.

For the last half century or so, lenders have relied upon policies of title insurance to insure the lender and the lender's mortgage and deed of trust against loss or damage occasioned by a defect in the title which the lender may be unaware of, despite the title insurer's research and the issuance of a preliminary title report.

However, a series of recent California appellate decisions, combined with a surprisingly strong title insurance lobby in Sacramento, have dramatically weakened the protections afforded by policies of title insurance. Many lenders are in for a significant surprise when they learn that their policy does not protect their title to the extent previously thought.

For example, let's take the usual situation, wherein a lender lends an individual money and takes a second trust deed on a residential parcel of property securing the indebtedness. At the time the deeds of trust are obtained, a title insurance company issues the lender a policy which typically insures the lender against any loss or damage sustained by the insurer because title was other than as stated or if there is any defect in or lien or encumbrance on the title.

Let us that six months after the issuance of the policy of title insurance, and after the homeowner has defaulted on his payments, the lender commences foreclosure proceedings. Typically, a lender will immediately engage a firm to act as trustee to handle the foreclosure sale. The trustee will typically record notices of default and immediately retain a title insurance company to perform a title search.

Suppose a title insurer discovers during the search that a previously recorded senior tax lien was in effect at the time the lender made its original loan. This lien was inadvertently omitted from the title insurer's preliminary title report and therefore constitutes an insurable event under the lender's policy of title insurance.

The lender naturally tenders a claim to its title insurance carrier for failing to discover and to note the previously recorded senior tax lien. The lender straightforwardly maintains that it would not have made the loan had the title insurer not bungled the title report. The lender demands reimbursement of the full amount of the loan.

Does the insurance company have a responsibility to repay the lender because of the title company's negligence in preparing the title report? The answer is a straightforward no.

Why? Because the strong title insurance lobby was able to persuade the legislature in Sacramento to add a provision to the California Insurance Code, section 12340. 11, which states as follows:

Preliminary title reports "are not abstracts ... of title, nor are any of the rights, duties or responsibilities applicable to the preparation and issuance of an abstract of title applicable to the issuance of any report. Any such report shall not be construed as, nor constitute, a representation as to the condition of title to real property, but shall constitute a statement of the terms and conditions upon which the issuer is willing to issue its title policy, if such offer is accepted."

Case law has upheld the ban this section provides on lawsuits brought against title insurance companies over preliminary title reports.

Moreover, a title insurer is under no obligation to pay benefits under a title policy until the insured suffers an actual loss by reason of an undisclosed title defect covered by the policy.

Title defects and liens directly and adversely affect the property owner because the owner is entitled to the full market value of the property, and that value is immediately reduced by outstanding title defects and liens.

In contrast, a mortgagee's loss is measured by the extent to which the insured debt is not repaid because the value of secured property is diminished or impaired by outstanding lien encumbrances or title defects covered by title insurance.

Therefore, superior liens or title defects and claims may exist which reduce the market value of the secured property, yet result in no loss or damage to the insured mortgagee.

In other words, if the value of the property does not exceed the amount owing on the disclosed lien, then the insufficiency of the security to satisfy the insured's debt is arguably the result of the insured's bad lending judgment, not the undisclosed title defect.

Suffice it to say, lenders may be surprised to learn an unreported title defect does not automatically mean the lender has suffered an insurable loss.

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