[Board1] [EXTERNAL] FW: [DIRT] Forbes article on "Inside America's Richest Racket"
Tiani Brandner
Tiani.Brandner at stewart.com
Fri Mar 15 10:22:05 PDT 2024
Well said, and most excellent defense of the true value in Title Insurance. Thank you George!
Tiani Brandner
Agency Services Manager
Agency Services
Stewart Title Guaranty Company
Alaska, Oregon & Washington
M (360) 335-4623
stewart.com<http://www.stewart.com/> | tiani.brandner at stewart.com<mailto:tiani.brandner at stewart.com>
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NYSE: STC
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From: Board1 <board1-bounces at washingtonlandtitle.com<mailto:board1-bounces at washingtonlandtitle.com>> On Behalf Of Craig Trummel
Sent: Friday, March 15, 2024 8:39 AM
To: board1 at washingtonlandtitle.com<mailto:board1 at washingtonlandtitle.com>
Subject: [EXTERNAL] [Board1] FW: [DIRT] Forbes article on "Inside America's Richest Racket"
In case any of you are not on the Dirt listserv, please see our own George Peters’ great response to those who question the value of title insurance. Thank you George! I will be out of the office on vacation March 21 and March 22, returning to work Monday March 25, 2024.Craig Tru
In case any of you are not on the Dirt listserv, please see our own George Peters’ great response to those who question the value of title insurance.
Thank you George!
I will be out of the office on vacation March 21 and March 22, returning to work Monday March 25, 2024.
[cid:image003.png at 01DA76C2.9E1CEE00][WLTA-WTP1 LOGO small]
Craig Trummel
Regional Underwriter/Washington State Counsel
C: 206.580.8344 | ctrummel at wfgtitle.com<mailto:ctrummel at wfgtitle.com> | www.wfgtitle.com<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.wfgtitle.com_&d=DwMF_g&c=A2I0cd0yeEKQCn3mv-g-KzOAX7YMnpExrKRXrh8neX0&r=Xz80tEsaiMXDWkyoFWULib1MnXoK8ghhk2eMY3_w0b4&m=VAftZQxlhNbVSNGeKhRy9Tf1r8VKBplUloPPUtYmEEsSxO3bOWF0VXF69QcdPfq8&s=aFPF2Tqqt5_M_vkq1UG747XfxDhgthsrNq_o4m6jPiE&e=>
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From: DIRT - Real Estate Lawyers Listserv [mailto:DIRT at LISTSERV.UMKC.EDU] On Behalf Of George Peters
Sent: Thursday, March 14, 2024 6:48 PM
To: DIRT at LISTSERV.UMKC.EDU<mailto:DIRT at LISTSERV.UMKC.EDU>
Subject: Re: [DIRT] Forbes article on "Inside America's Richest Racket"
I might respectfully disagree with a broad statement as to a computer examining title and determining its status and risks to a buyer or lender. The term “underwriting” in this context is quite broad. While there are variations in how title
I might respectfully disagree with a broad statement as to a computer examining title and determining its status and risks to a buyer or lender. The term “underwriting” in this context is quite broad. While there are variations in how title insurance is produced around the country, some elements are not avoidable, notwithstanding that computers are a valuable tool to assist in the process (time spent in reading indexes for example.).
The proposal to forego title insurance (Title Waiver Pilot program in this case) raises a number of issues that concern consumers (avoiding state regulation of insurance, GFEs being insurers, and on). But a couple of comments based on the proposal (for example, the percentage of income paid out in claims and the fee split between underwriters – title insurance companies – and their agents), warrant some general comments, to clarify what might not always be understood about title insurance. What follows is lengthy but there is likely more that could be discussed by others on DIRT.
Title insurance is not related to other types of insurance. It provides indemnity coverage for matters affecting title that are not as stated in the policy. (It does not say: “Title is vested in Fred” but rather says: “I will defend Fred if the title is not vested in Fred or if someone sues Fred to say Fred is squatting on my land”. Not an exact quote of course, but merely descriptive of the policy language.) The risk assumed is not based on a bet against any odds that you might suffer a future loss by fire, or be involved in a car accident or suffer a health problem, or die – all casualty coverages. Instead, title insurance assumes the risk that title might not be vested as stated in the policy. That is, that Fred doesn’t have the title – fee, leasehold, easement, etc., because of, as examples: fraud in a previous conveyance of the title or some other defect in a deed in the past chain of title, a defect in the execution of a mortgage being insured, etc., or there is a lien that hasn’t been disclosed and that the insured hasn’t accepted – or even that the title company made a mistake and overlooked a lien or unpaid taxes.
In any event, title insurers generally have filed rates and are well regulated by the state insurance departments in the various states within which they operate, and must maintain reserves against potential claims. Also, the distinction between title insurance and other forms of insurance is emphasized by the “monoline” insurance requirement in many states. This prohibits title insurers from offering property casualty, health, life or other “lines” of insurance. It also effectively prohibits a company that offers other kinds of insurance from offering title insurance, unless it forms a subsidiary to operate with a separate title insurance license. Apples to apples, oranges to oranges as it were, and you can’t mix the two.
Of course, there are liens and encumbrances that are regularly deemed acceptable, such as easements, HOA covenants and restrictions, ongoing taxes and assessments, etc. But the policy is not issued until the insured and the insurer are in agreement as to the state of the title as insured.
Only a labor-intensive search of the records will suffice. As Dale and Jason point out, the business of title insurance is examining – and analyzing – the records (real property deeds, mortgages and other categories that might be unique to local recording systems), tax and assessment records on the local and state level, judgment liens, corporate and similar entity records to determine the legitimacy of the entity signing the deed or mortgage, etc. There is a lot of work involved in “risk elimination” as opposed to risk assumption common to casualty insurance. In addition, there are some risks title insurers often assume that cannot be determined by a search of the records, such as possession, inchoate labor or material lien rights, matters only a survey or inspection would show such as encroachments or easement rights, etc. If those elements are pursued, additional expense and work is required, and are not done by a computer. And certainly, if there are inchoate lien rights that have priority over the insured interest, underwriting the risk that they are not paid to defend against attempted enforcement is a not insignificant task – performed by people and not computers.
By the way, many western states require title companies to own and maintain title “plants” which include copies of the documents in the public records. While this may avoid the need for an abstractor to sit at the courthouse conducting a search of the deed books, it still requires those company documents to be maintained and insured, and the records sifted and reviewed.
Also – record searches must be current as of the moment of closing, whether that is at a table closing with attorneys for the buyer, seller, lender, etc., sitting with the papers to be signed and sent off for recording, or in an escrow closing conducted by an attorney or licensed “limited practice” officer – in many states by an employee of the title company. Typically funds are passed and the deal is sealed only when the title company can confirm recordation of the insured documents and conduct a final records search to confirm nothing has intervened since the last check. This latter can be problematic in many jurisdictions, and the title company will often assume the risk for such “gap” matters.
A real estate closing involves a lot of moving parts, and the title element involves labor to get to the point of writing a policy. The “title company” might be the insurer (the underwriter) with direct access to the public records or an agent for the underwriter that does the work and writes the underwriter’s policy. In the latter case, the fee split simply represents an agreed-upon work/insurance ratio, but that same work has to be done either by employees of the underwriter or an agent.
So – the title insurance premium may be considered high by the consumer, but what fee isn’t? Real estate transactions involve many costs to the parties – legal, if a lawyer is retained, escrow, transfer or mortgage taxes, the Realtor® commission, tax prorations, lien payoffs, a survey in some instances, recording fees, etc., and it is not fair to single out one and arbitrarily assume it is excessive. But the protections provided by a title policy are significant, and generally not readily absorbed by a homeowner if there is no insurance policy.
A significant portion of a casualty policy premium is “insurance” and thus the claims-to-premium income ratio is higher. Claims paid by title insurers (a large portion of which involves litigation costs to defend the title and not just paying off an encumbrance) while a smaller percentage of premium income, are a larger percentage of the “insurance” element of the premium income, since most of the income pays for the labor and other expenses to produce the product.
Many risks are assumed, including errors made by the title company in the posting of deed and mortgage data (whether entered by hand or computer) so that a relevant document isn’t seen, or simply overlooked in the search, or misread by the examiner who peruses all the possible documents affecting title. Such errors – which can be made by a computer as well as a person – are not an element of risk common to casualty insurers, and certainly not assumed by the insured.
By the way – a proposed insured or counsel might argue that a particular lien, while asserted, is not valid and would be defeated in the event of a suit to enforce it. This argument is often made by a proposed insured or counsel with the assumption that the title company will simply assume that risk (that is, ignore it) but it would do so at a significant peril – the insurer might well expend more in the cost of defense than the amount of the lien, and most certainly substantially more than the premium collected. The insurer will respect that the request should be made by the proposed insured or counsel, but deserves respect for whatever its decision is – to insure or not to insure.
The title company interacts with the seller, the buyer, the lender, the Realtor®, the lender the surveyor, the county recorder’s office, the assessor and treasurer, other local and state taxing and assessment agencies, the court system, the Secretary of State. It must understand all of them – their interests, needs and requirements, and work hand-in-hand with each and all of them in the complex process of closing a transaction.
You wouldn’t think that a book could be written about this issue, but there are indeed necessary elements of professionalism, skill and (what a non-title person might consider) arcane knowledge involved in the title insurance industry – which evolved from a myriad of conveyancing practices dating to Colonial times and before.
My two cents…
George
George Peters, WTP
Executive Director
Washington Land Title Association
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From: DIRT - Real Estate Lawyers Listserv <DIRT at LISTSERV.UMKC.EDU<mailto:DIRT at LISTSERV.UMKC.EDU>> On Behalf Of dan at JMGLAWOFFICES.COM<mailto:dan at JMGLAWOFFICES.COM>
Sent: Thursday, March 14, 2024 1:33 PM
To: DIRT at LISTSERV.UMKC.EDU<mailto:DIRT at LISTSERV.UMKC.EDU>
Subject: Re: [DIRT] Forbes article on "Inside America's Richest Racket"
While the industry has continued to make the assertion that they charge so much because of the upfront costs are so high and the length of coverage so long, I do not find the arguments persuasive. The vast majority of “underwriting” on residential mortgages is now performed by computer. There is no real work involved and the capital costs have already been baked in long ago.
Dan Mulligan
JENKINS MULLIGAN & GABRIEL LLP
4079 Governor Drive, #5015
San Diego, CA 92122
858-529-2372
From: DIRT - Real Estate Lawyers Listserv <DIRT at LISTSERV.UMKC.EDU<mailto:DIRT at LISTSERV.UMKC.EDU>> On Behalf Of Michael Baucum
Sent: Thursday, March 14, 2024 1:12 PM
To: DIRT at LISTSERV.UMKC.EDU<mailto:DIRT at LISTSERV.UMKC.EDU>
Subject: Re: [DIRT] Forbes article on "Inside America's Richest Racket"
As I recall, what took LandAmerica down was not title insurance but rather playing fast and loose with 1031 exchange trust funds (buying some sort of derivative which cratered) and that is what took the entire operation down.
MICHAEL BAUCUM
BAUCUM LAW FIRM PLLC
1100 NW LOOP 410 #260
SAN ANTONIO TX 78213-2270
DIRECT LINE 210-451-8140
CELL PHONE 210-602-6704
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Commercial Real Estate Law
Residential Real Estate Law
From: DIRT - Real Estate Lawyers Listserv <DIRT at LISTSERV.UMKC.EDU<mailto:DIRT at LISTSERV.UMKC.EDU>> On Behalf Of Cholewa, Matthew
Sent: Thursday, March 14, 2024 11:40 AM
To: DIRT at LISTSERV.UMKC.EDU<mailto:DIRT at LISTSERV.UMKC.EDU>
Subject: Re: [DIRT] Forbes article on "Inside America's Richest Racket"
The 2006 Forbes article describes LandAmerica as being “fat and thriving.” Given that it filed for bankruptcy barely two years later, that didn’t really age well, did it?
Matthew J. Cholewa
First Vice President
Senior Underwriting Counsel
C: 203.848.8606
mcholewa at oldrepublictitle.com<mailto:mcholewa at oldrepublictitle.com>
Old Republic National Title Insurance Company | Old Republic Insurance Group
From: DIRT - Real Estate Lawyers Listserv <DIRT at LISTSERV.UMKC.EDU<mailto:DIRT at LISTSERV.UMKC.EDU>> On Behalf Of Hosack, John L.
Sent: Tuesday, March 12, 2024 7:29 PM
To: DIRT at LISTSERV.UMKC.EDU<mailto:DIRT at LISTSERV.UMKC.EDU>
Subject: [EXTERNAL] [DIRT] Forbes article on "Inside America's Richest Racket"
WARNING: This message has originated from an External Source. This may be a phishing expedition that can result in unauthorized access to our IT System. Please use proper judgment and caution when opening attachments, clicking links, or responding to this email.Colleagues, Attach
WARNING: This message has originated from an External Source. This may be a phishing expedition that can result in unauthorized access to our IT System. Please use proper judgment and caution when opening attachments, clicking links, or responding to this email.
Colleagues,
Attached is an October 2006 article from Forbes magazine on the title insurance industry, which you may find of interest.
Best regards,
John
Buchalter
John L. Hosack
Shareholder
T (213) 891-5080
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----------------- DIRT provides an informal forum for the expression and discussion of ideas, theories, and concepts about legal issues relating to real estate. Creativity, speculation and rumination are encouraged. The comments published here should not be taken to represent the commentor's position or opinion in any present or future client representation or litigation; they should be regarded as tentative thoughts, based on particular facts as the commentor understood them, and subject to later rethinking and revision. They are not legal advice and do not create an attorney-client relationship. They are not electronic records, electronic signatures, or agreements to conduct any transaction by electronic means pursuant to UETA, ESign, or any similar law.
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