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Title and Escrow Information

Holding Title

Before you reach the closing day, you will want to make a decision as to how you will "hold title" to the property. This decision has legal, tax and estate planning ramifications. Therefore, it may be prudent to consult an attorney or certified public accountant (CPA).

The following information is supplied for informational purposes and should not be relied upon as legal definitions.

Buying Alone

  • Sole Ownership
    • A single individual who has not been legally married.
    • An unmarried individual who was married and is now legally divorced.
    • A married individual who wishes to acquire title in his or her name alone. At the time of closing, the spouse of the buyer will be required to specifically disclaim or relinquish his or her right, title and interest to the property.

 

  • Living Trust
    A living trust is created while an individual is alive and gives the individual control of the distribution of his or her estate. The individual transfers ownership of his or her property and assets into the trust.

 

Buying with Others

  • Tenancy in Common
    Enables each partner in the property to sell, lease or will to his/her heirs that share of the property belonging to him/her.
    • Who can take title? Any number of individuals.
    • Ownership Division: Any number of interests, equal or unequal.
    • Who holds title? A separate legal title to his undivided interest is held by each co-owner.
    • Possession: Equal right of possession.

 

  • Joint Tenancy
    Property owned by multiple individuals where if one of the owners dies, the remaining owners acquire the share of the deceased owner automatically.
    • Who can take title? Any number of individuals.
    • Ownership Division: Interests cannot be divided.
    • Who holds title? There is only one title to the whole property.
    • Possession: Equal right of possession.

 

  • Community Property
    Property owned equally between a husband and wife. Each must sign all agreements and documents of transfer.
    • Who can take title? Only a husband and wife.
    • Ownership Division: Interests are equal.
    • Who holds title? Similar to title being in a partnership, title is held in "community."
    • Possession: Equal right of possession.

 

Additional Ways to Hold Title

  • Corporation
    A corporation is a legal entity, created under state law, consisting of one or more shareholders but regarded under law as having essentially the same as those of an individual. The entity has continuous existence until it is dissolved according to legal procedures. Land owned by a corporation cannot be attached for personal debts or judgments rendered against any of its shareholders.

 

  • A Partnership
    A partnership is an association of two or more persons who can carry on business for profit. A partnership may hold title to real property in the name of the partnership with partners having an equal or an unequal interest in the property.

 

  • A Trust
    A trust is an arrangement whereby legal title to property is transferred by the grantor (or trustor) to a person called a trustee, to be held and managed by that person for the benefit of the people specified in the trust agreement, called beneficiaries.

Title Insurance = Peace of Mind

Purchasing a home is probably the single biggest investment you will ever make. Before closing on the house, you'll want to know that no other individual or entity has a right, lien or claim to the property.

 

Determining that your rights and interests to the property are clear is the business of a title insurance company.

 

For a modest, one-time title insurance premium, you will receive continuous title insurance protection in an amount equal to the purchase price of the property or its current market value. This premium typically includes your "owners" policy as well as the "lenders" policy.

One of the marked advantages of title insurance is that prior to a policy being issued, the title insurance company completes extensive research into relevant public records, maps and documents to trace ownership of the property and determine if anyone other than you has an interest in the property. Through its research, the title insurance company can usually identify any title problems that may arise and have these problems cleared-up prior to closing.

 

Your title insurance owner's policy will describe the property and outline any recorded limitations on your ownership. It will also set forth the title insurance company's responsibilities should any claim covered by the policy terms arise. Typically your title insurance will protect you from loss:

  • if someone contests your title in legal action (the title insurance company will defend the title at no expense to you),

     

  • or if there is a title defect that cannot be eliminated (the title insurance company will protect you from financial loss - up to the amount of the policy).

 

Closing the Sale

Escrow
To finalize the sale of the home a neutral, third party (the escrow holder, a.k.a. escrow agent) is engaged to assure the transaction will close properly and on time. The escrow holder insures that all terms and conditions of the seller's and buyer's agreement are met prior to the sale being finalized, including receiving funds and documents, completing required forms, and obtaining the release documents for any loans or liens that have been paid off with the transaction, assuring you clear title to your property before the purchase price is fully paid.

 

The documentation the escrow holder may be collecting includes:

  • Loan documents
  • Tax statements
  • Fire and other insurance policies
  • Title insurance policies
  • Terms of sale and any seller-assisted financing
  • Requests for payment for various services to be paid out of escrow funds

 

Upon completion of all instructions of the escrow, closing can take place. All outstanding payments and fees are collected and paid at this time (covering expenses such as title insurance, inspections, real estate commissions). Title to the property is then transferred to the seller and appropriate title insurance is issued as outlined in the escrow instructions.

At the close of escrow, payment of funds shall be made in an acceptable form to the escrow. As your real estate agent, I'll inform you of the acceptable form.

 

The Escrow Holder Will:
The Escrow Holder Won't:
  • Prepare escrow instructions
  • Request title search
  • Comply with lender's requirements as specified in the escrow agreement
  • Receive funds from the buyer
  • Prorate insurance, tax, interest and other payments according to instructions
  • Record deeds and other documents as instructed
  • Request title insurance policy
  • Close escrow when all instructions of seller and buyer have been met
  • Disburse funds and finalize instructions
  • Give advice - the escrow holder must maintain neutral, third-party status
  • Offer opinions about tax implications

 

Mortgage Escrow Account

A Mortgage Escrow Account is established to pay on-going expenses while there is a loan on the house. These expenses include property taxes, home insurance, mortgage insurance, and other escrow items. Generally, the Escrow Account is partially funded at closing and the home buyer makes on-going contributions through their monthly mortgage payment.

What is Earnest Money?

Earnest money shows you’re serious
Typically when an offer to purchase a house is made, you, as the buyer, will also pay an “earnest money” deposit.  This deposit shows the seller that you’re serious about the offer to purchase the property. 

The amount of earnest money deposit varies based on the type of property being purchased and local market conditions.  As your real estate professional, I’ll help you determine the appropriate amount to pay as an earnest money deposit.

The sales contract will dictate who holds the earnest money.  Usually the seller’s real estate agent will deposit the earnest money in a trust or escrow account until closing.   At closing, the earnest money is applied to the purchase price.

In the event the sale doesn’t close, the sales agreement generally spells out the conditions under which you would forfeit the earnest money.  Generally if the seller meets all the terms of the contract, the seller will keep the earnest money.  If the seller does not meet the terms of the contract, you, as the buyer, may receive a total or partial refund of the earnest money. 

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