Nichole Y. Shafer
Guest Columnist
If you want to know if a property you are purchasing is owned by the person trying to sell the property, one way to find out is through an “attorney opinion.” An attorney opinion is when a title examiner examines and provides a report on what public records show regarding the title of a property. This report is then used by an attorney to form an opinion on the property’s marketable title.
Attorney opinions only inform of title defects discovered from a record search. Thus, if something is missed in the title exam, a person can usually only recover if the title examiner or attorney were negligent in searching or interpreting recorded instruments. Further, the cost of bearing a lawsuit against the title examiner or attorney for negligence would fall on the client. This is unlike title insurance, where the expense of bringing the lawsuit against the abstractor or attorney falls on the title insurer.
Additionally, unlike title insurance, an attorney opinion does not provide protection for title defects that are not identifiable from a title search. Common examples of these excluded defects are fraud, forgery, undue influence and other basic title risks not reflected in the public records.
Further, title insurance does protect against false impersonation of the owner of the land, but an attorney opinion does not. Same with deeds that appear to convey title but are really mortgages.
Other protections that title insurance protects against that are not included in an attorney opinion include when a document is executed by a minor or when a document is executed by an insane or incompetent person.
Additional protections that title insurance protects against include when there are devisees in wills not discovered at the time of the owner’s death. This also includes heirs not disclosed in the public records who have an interest in the property. It also includes heirs of prior owners who died before judgment in a foreclosure action who were not included in the action by name and thus not subject to said foreclosure.
The added protections of title insurance are a large reason why many banks require title insurance as part of the mortgage process as opposed to attorney opinions.
Other added protections that title insurance protects against include when a grantee receives an interest under one name and conveys it using a different name, when there is an improper notice of judicial proceedings given to those with interests in the real property, when an executed deed has had a failure of delivery and making deed void, and when deeds are executed under a power of attorney that is later declared invalid.
Thus, it is not only a good idea to have a title examination of a property prior to purchasing, it is also a good idea to know what protections you are getting with the results of the title examination.
Nichole Y. Shafer is an Ohio-licensed attorney at Schroeder Law LTD in Putnam County. She limits her practice to business, real estate, estate planning and agriculture issues in northwest Ohio. She can be reached at [email protected] or at 419-659-2058. This article is not intended to serve as legal advice, and specific advice should be sought from the licensed attorney of your choice based upon the specific facts and circumstances that you face.
