Question

Can title insurers that issued a policy with a major defect require the purchasers of the policy to act as plaintiffs in order to get paid for their loss

Answer 1

A title insurance commitment or policy involves not only locating all record instruments ... who has been paid the full policy limits, the insured could have bargained for .... If allowed, any plaintiff in negligence could avoid the economic loss rule by .... Agency law provides that a principal is liable for the acts of its agent which ...

As with any insurance policy there are exclusions and exceptions. The residential owner’s policy expressly excludes such items as building and zoning ordinances; condemnation; title problems created by or undisclosed by the insured, or arising from fraud by the insured; title problems that result in no actual loss; access issues; refusal of anyone to lend money; and physical condition of the land.

Exceptions are specific limitations on coverage. These include standard printed exceptions on Schedule B—restrictive covenants and deed restrictions; the survey exception (“discrepancies, conflicts, or shortages in area”) which can (and, for buyers should) be deleted for a fee; homestead, community, and survivorship rights; the exception for riparian rights, water-rights, and tidelands; the tax exception, including rollback taxes; the mechanic’s lien exception; the exception for leases and subordinate liens; the rights of parties in possession; and, if there is no survey, easements and encroachments. The title company may also add special exceptions that it deems necessary after doing its research.

Title companies do not insure fraudulent conveyances or preferential transfers (transfers made to avoid payment of creditors). Excluded is “any claim, by reason of the operation of federal bankruptcy, state insolvency, or similar creditors’ rights laws, that the transaction vesting the Title as shown in Schedule A is (a) a fraudulent conveyance or fraudulent transfer, or (b) a preferential transfer for any reason not stated in Covered Risk 9 of this policy.” So if one is engaged in edgy asset protection, do not look to a title company for assistance.