Author: Mike Pfefferman

When you’re in the final stages of buying a new home, it’s easy to assume that everything will go smoothly from here on out. However, one of the most common obstacles that can arise in this final stage of the process is title issues. If not addressed, these can delay your closing or even derail the sale. 

A “cloud on title” or “title defect” refers to any issue that prevents a property’s title from being transferred smoothly from the seller to the buyer. Title defects often surface during the title search, a standard process that ensures the property’s title is clear and ready for transfer. The most common title defects include liens, easements, or prior claims on the property, any of which can delay or prevent a sale from going through.

Understanding the Title and Its Importance

When you own a property’s title, you have the legal right to control what happens to the property, whether that’s living on it, selling it, or leasing it out. A successful home purchase includes the transfer of title from the seller to the buyer, typically through the closing process, where the buyer receives both the title and the deed.

However, property rights can be restricted due to zoning laws, easements, or other legal regulations, which is why conducting a title search is so important. This search helps reveal any underlying issues that could prevent the smooth transfer of the title.

Can You Waive a Title Search?

In most cases, waiving a title search is not recommended, especially if you’re using a mortgage to finance your purchase. Title searches are designed to reveal hidden problems that could affect the ownership of the property. Let’s look at two scenarios:

When Buying with a Mortgage: Mortgage lenders require a title search to ensure the property has a clear title. Skipping this step could result in buying a home from someone who doesn’t legally own it, jeopardizing your ability to own the property.

When Paying Cash: If you’re paying cash, you technically have the option to waive the title search, but it’s still a good idea to proceed with one. If the seller has no legal rights to the property, you could be left with no ownership and no way to recover your funds.

Common Causes of Title Defects

Liens: Liens are legal claims against a property for unpaid debts. These debts could be related to unpaid property taxes, unpaid contractor bills (mechanic’s liens), or even unpaid Homeowner’s Association (HOA) fees. When you purchase a home with a lien on it, you may inherit responsibility for that debt.

Tax Liens and Delinquent Tax Bills: If a homeowner fails to pay their taxes, the government can place a lien on the property. Resolving this issue may involve proving that taxes have been paid or paying them off at closing.

Easements: An easement gives someone else the legal right to use part of your property, such as for utilities. While most easements are harmless, some can limit how you use your property and may not be immediately disclosed.

Mechanic’s Liens: Contractors who weren’t paid for their work can file a mechanic’s lien, which must be resolved before the property can be sold. This lien is attached to the property, not the seller, meaning the buyer could become responsible for the unpaid debt.

Probate and Ownership Issues: If a seller passes away before the closing, you may face delays due to probate issues. Similarly, if a property is owned by multiple parties or is part of a living trust, this can complicate the transfer of the title.

What Should You Do If a Title Defect Is Found?

While most title defects can be resolved, they usually cause delays. The best course of action is to consult with a real estate attorney. They can help you navigate the process and make sure that the title is cleared before you move forward with the purchase. It’s important to address any red flags early, as ignoring them could leave you with costly debts or legal issues down the road.

A smooth closing process is something every homebuyer hopes for, but title issues can create unexpected roadblocks. By being aware of common title defects and working with professionals to resolve them, you can help ensure that your closing goes as planned. Remember, no lender will approve a mortgage for a property with unresolved title issues, so it’s crucial to clear any problems before proceeding with the purchase.