Survey Exception

Survey Exception

An owner’s title policy is written the same way as most insurance policies, it provides you coverage limited by certain exceptions and exclusions.  Among these exceptions is one that states; “We do not cover loss, costs, attorneys’ fees and expenses resulting from any discrepancies, conflicts, or shortages in area or boundary lines, or any encroachments or protrusions, or any overlapping of improvements.”   In other words, the policy does not insure against boundary issues or that the improvements on your land, or your neighbors, do not cross the property line or any building set-back or easements.  The Texas Department of Insurance does allow this exception to be modified to provide additional coverage to the buyer after the title company reviews an accurate survey of the property.  If the buyer elects to amend the standard exception, the title company will review the survey and may make specific exceptions based on what is shown on the survey.  Beyond those specific exceptions, the normal exception will be changed to read: “We do not cover loss, costs, attorneys’ fees and expenses resulting from shortages in area .”  Shortages in area is a reference to the mathematical term area, or the actual size of the property.  Other issues, such as boundary lines, encroachments or protrusions that are not specifically excepted to, will then be covered by the owner title policy.

In residential transactions, the cost for the additional coverage is 5% of the base policy premium for the owner title policy.  In commercial transactions, the cost is 10% of the base policy premium for the owner title policy.  I typically advise residential buyers that they should purchase the additional coverage.  The cost is nominal, a couple of hundred dollars or less on most transactions, and you never know what issues you may have with your new neighbors.  On commercial transactions, it really depends on the scenario because the cost can run into the thousands of dollars.

If you would like to use a knowledgeable title company conveniently located in the Heights, please give us a call.

Fidelity National Title, 1512 Heights Blvd., Houston, TX 77008 (713) 529-8800.



What is FIRPTA and how does it affect the Buyer in a Real Estate Transaction

FIRPTA is an acronym for the Foreign Investments in Real Property Tax Act.  FIRPTA is a U.S. tax statute that imposes tax on foreign persons, defined as nonresident non-citizen individuals and corporations, disposing of real property in the United States.  In order to ensure collection, the statute places the burden of verifying the applicability of FIRPTA on the buyers, as well as withholding and remitting the required funds, and creates a lien against the real property to secure the payment of any amount due. Real property transactions with a value of $300,000.00 or less which will be the principal residence of the purchaser are exempt from FIRPTA withholding.

Because the statute secures the payment of any requited withholding as a lien against the property being purchased, buyers should verify whether the transaction is exempt from FIRPTA and, if not, whether the seller is a foreign person under the statute.  The escrow agent or title company handling the transaction may request verification from the seller as part of their processing of the transaction, or as a courtesy to the parties, but the ultimate responsibility is on the purchaser.  Typically the title company will assist in the event withholding is required by deducting the funds from the seller’s proceeds and remitting them to the IRS.

Happy New Year!

Happy New Year!

Wishing you a prosperous new year filled with health, joy and success.

Thank you for being a valued part of our business. We truly appreciate the opportunity to serve you and look forward to a successful partnership in the coming year.

Happy New Year!
Happy New Year!

Do I Really Need a New Survey?


Do I Really Need a New Survey?

When someone buys a home, the question always comes up as to whether they would like to have a new survey of the property or use an existing one provided by the Seller.  To make an informed decision, the potential buyer should understand that a survey is drawing that shows the boundaries of a property, as well as any improvements, easements, building set back lines and other features relevant to the owner’s use of the property.  With that understanding, and assuming that the seller does in fact have an existing survey, there are several questions that the potential buyer should ask.

  1. Does the seller’s existing survey accurately depict the property? The potential buyer has been to the property and should be able to look at an existing survey and determine if the drawing looks the same as the property looked in person.  Google maps can also be a good way to compare an aerial view of the property to the survey.  If there is a variance what is shown on the existing survey and what is actually on the property, a new survey should be ordered.
  2. How old is the existing survey? As long as there have been no changes to the improvements, easements or building set back lines, title companies will typically accept surveys that are less than 10 years old (and even older if you ask nicely).  However, there have been huge advances in the technology used by surveyors, such as GPS, which allow for much more accurate measurements.  It is not unusual for us to see a platted 50’ X 100’ lot actually be slightly smaller or larger using modern technology.
  3. Is the surveyor who performed the existing survey still in business? Surveyors are licensed by the State and carry Errors and Omissions Insurance to cover them in the event of a mistake.  Most surveys contain language that they are only certified to the purchaser and title company shown on the face of the survey, but the knowledge that the surveyor is still in business or at least available in the event of an issue can be important.


Assuming the existing survey is accurate and acceptable to the title company, Realtors that we deal with are split on whether they advise their clients to have a new survey performed.  The primary reason to use an existing survey is to save money.  The price range for residential surveys is currently between $350.00 and $550.00.  While this may appear to be a substantial amount, when one considers that the purchase of a home is probably the largest investment they will make during their lifetime, the cost is actually minimal.  Potential buyers should also keep in mind that a new survey will be certified by the RPLS for that buyer, giving the buyer additional protection in the event of a boundary dispute.

If you would like to use a knowledgeable title company conveniently located in the Heights, please give us a call.  Fidelity National Title, 1512 Heights Blvd., Houston, TX 77008 (713) 529-8800.


Affidavits of Heirship

An Affidavit of Heirship is a sworn document that sets out the family history of a deceased person.  The primary purpose of an Affidavit of Heirship is to let others, particularly probate courts, title companies and others interested in the disposition of a person’s estate, know the person or persons who will inherit property under the Texas laws of intestate succession and should include information on whether the decedent had a will.  An Affidavit of Heirship may be used in conjunction with probate proceedings, or may be used as a stand-alone document in the event there is not a reason that the decedent’s estate must go through the probate process.

The Texas Estates Code sets forth a form Affidavit of Heirship that is acceptable for use in conjunction with probate proceedings.  This same form when used as a stand-alone document, however, is not acceptable for title company underwriting purposes because it omits several things that are relevant to the transfer of title and which are typically covered by other probate proceedings.  In addition to the family history, title companies require that any will of the deceased be attached, an affirmative statement that all debts of the decedent, including federal estate taxes and any amounts due under the Medicaid Estate Recovery Program, have been paid.  In order to combat fraud, title companies also require that the Affidavit contain a perjury clause, indicating that the affiant acknowledges that lying on the document will subject them to criminal prosecution.  As an extra defense against fraud, title companies also require that the information in the Affidavit of Heirship be affirmed by two disinterested witnesses that are familiar with the family history of the decedent.

Once an Affidavit of Heirship is completed, the title company examiner will review to determine who will be required to sign the documents transferring title.  Typically this will include not only the heirs at law, but any devisees under the will who are not also heirs at law.  Although the title company will determine who needs to sign, they will not typically determine the interest owned by each heir or devisee as the title company does not provide legal advice to the parties.   The title company will ask that all those required to sign to also sign a document designating how much of the proceeds will be disbursed to each signer, so that an agreement is in place before the title transfer occurs.

If you would like to use a knowledgeable title company conveniently located in the Heights, please give us a call.  Fidelity National Title, 1512 Heights Blvd., Houston, TX 77008 (713) 529-8800.



Closing Properties in an Estate

Closing Properties in an Estate

It is not unusual for a title company to handle a transaction in which the last person in the recorded chain of title for a piece of property is deceased.  When this happens, title companies must rely on the Texas Estates Code to determine who has authority to sell the deceased person’s property.  A person who dies with a will is said to have died testate.  When a person dies testate, typically the terms of the will dictate who has authority to act on behalf of their estate and what actions that person(s) can take with regard to property.  When a person dies without a will, they are said to have died intestate.  The Estates Code sets forth procedures for probating the estates of both testate and intestate individuals.

Wills are not required to be probated in Texas, however title companies prefer that they be probated and the statutory requirement followed during the probate process.  It typically takes several months to probate a will in Texas.  An application and the will must be filed with the probate court, the court must approve the application and appoint an Executor (generally the person or persons named in the will if the person dies testate) or an Administrator, notices must be published so that creditors and anyone else interested in the estate can make their claim and an inventory of the assets of the estate must be prepared and approved.

Probates where the Will allows for the sale of property and in which the Probate Court appoints and Independent Executor or Independent Administrator do not require any further action by the Probate Court.  If the Will does not allow for the sale of property, or if the probate is a Dependent Administration, Court approval may be required in order for the property to be sold.  In a Dependent Administration, there is a four step process that the Administrator must follow in order to sell the property which includes filing an Application with the Court to sell the property, Reporting to the Court that the Property is under contract and getting a Decree from the Court affirming that the property can be sold.  This four step process may take in excess of thirty days to complete.

If you have a property that is currently part of an estate, it is a good idea to contact a title company before you list the property for sale so you can understand both the statutory and title company’s requirements.  This will allow you to set reasonable timing expectations for your prospective buyers.

If you would like to use a knowledgeable title company conveniently located in the Heights, please give us a call.                       Fidelity National Title, 1512 Heights Blvd., Houston, TX 77008 (713) 529-8800.