Last Update: 10/29/18
As the Florida real estate market moves along, title issues continue to cause problems for Florida home owners, those wanting to sell Florida property, as well as those who want to buy a Florida home or condo. Why? For one thing, the ForeclosureFraud mess from years ago disrespected and ignored longstanding Florida law designed to protect the chain of title to real estate – leaving quiet title actions the only way to clean up the mess.
The integrity of the system has been harmed. Everyone involved in Florida real estate should proceed with care in dealing with real estate title transactions (sales, purchases, leases, insurance, etc.).
Here are ten things that everyone needs to know about chain of title to Florida real estate and the process of quieting title:
1. What is “title”? When someone owns “title” to land in Florida, it means that they have some form of legal interest in that property. In Florida, the Florida Legislature and the Florida Courts are very, very careful to protect the recording of land ownership and the process for how real estate is transferred from one owner to another. This is the title process. For example, here is a law that was passed long ago – in 1828 – that is still effective today:
689.01 How real estate conveyed.
No estate or interest of freehold, or for a term of more than 1 year, or any uncertain interest of, in or out of any messuages, lands, tenements or hereditaments shall be created, made, granted, transferred or released in any other manner than by instrument in writing, signed in the presence of two subscribing witnesses by the party creating, making, granting, conveying, transferring or releasing such estate, interest, or term of more than 1 year, or by the party’s lawfully authorized agent, unless by will and testament, or other testamentary appointment, duly made according to law; and no estate or interest, either of freehold, or of term of more than 1 year, or any uncertain interest of, in, to, or out of any messuages, lands, tenements or hereditaments, shall be assigned or surrendered unless it be by instrument signed in the presence of two subscribing witnesses by the party so assigning or surrendering, or by the party’s lawfully authorized agent, or by the act and operation of law. No seal shall be necessary to give validity to any instrument executed in conformity with this section. Corporations may execute any and all conveyances in accordance with the provisions of this section or ss. 692.01 and 692.02.
History.–s. 1, Nov. 15, 1828; RS 1950; GS 2448; RGS 3787; CGL 5660; s. 4, ch. 20954, 1941; s. 751, ch. 97-102; s. 2, ch. 2008-35.
2. Different Ways to Take Title. In Florida, you can own real estate in several different ways. Under Florida law, you can “take title” to real estate through any of the following ways and which option you choose may depend upon several factors: estate planning may be a consideration, for example, and tax issues can be another.
Sole Ownership – here you take title to the real estate in your name alone.
In Trust – in Florida, land title can be held in the name of a trustee of a specific trust, for the benefit of the trust’s beneficiaries, including a Living Trust and a Florida Land Trust.
Shared Ownership — here, you take title to the property with one or more other people as joint owners. Two examples: land title held as “tenants in common” or “joint tenants with the right of survivorship.”
3. Who Can Hold Legal Title to Florida Real Estate? Floridians, of course: residents of the state own most of Florida real estate. Americans living in other states can also hold title to Florida real estate as well as citizens of other countries. In fact, buying pretty Florida vacation spots is very popular right now with people all over the world (Canada, Great Britian, Brazil, etc.).
However, you don’t have to be a real, living person to hold legal title to land here in the State of Florida. Corporations and partnerships can hold legal title to Florida real estate. So can the local, state, and federal governments.
4. What is the process of clearing title to Florida real estate? Making sure that you have clean and clear title to real estate can be accomplished by a “quiet title” action, which is a lawsuit that is filed in a Florida court. Obtaining a title insurance policy protects you against claims by others who are asserting a right to your property, but a title insurance policy does not clean up legal title. Title insurance just means the title to the real estate is insurable. It doesn’t mean the tile is free of any defects.
5. What is a quiet title action? A quiet title action is a lawsuit filed in a Florida circuit court. It is a civil action. The homeowner or property owner is often the party bringing the action, and they are asking the judge to issue a judgment cutting off the rights of those who may have an interest in the property or who have clouded title (i.e. heirs of a deceased prior owner, construction lien holders, leaseholders, etc.).
6. How long do quiet title actions take? How long the lawsuit will take, from start to finish, depends upon the circumstances of your individual case. Just like with any litigation, there are many variables that determine how long a case will take to conclude, including the number of parties involved in the lawsuit, locating the parties, and addressing any possible defenses.
7. What Does a Quiet Title Action Accomplish? A quiet title lawsuit results in a judgment, signed by a Florida judge, that is filed in the real estate records to demonstrate that a judge has ruled and declared that all adverse legal interests to a specific piece of property have been removed. The chain of title is cleared of the encumbrance or lien in the real estate records. The title has been “quieted.”
8. What Is Left After a Quiet Title Action? A quiet title action will not erase legal claims to the real estate that are shown to be legitimate under the law. For example, if there is a Federal Tax Lien on the property, that may survive the quiet title action. Similarly, as discussed in our last post, a bank’s mortgage lien may survive a quiet title action.
9. What is a Chain of Title? The chain of title to land is the historical record of who has owned that parcel, from the current day back in time as far as the records can go. Real estate records are kept at the county clerk’s office. There are counties in Florida where title searches can go back into handwritten land records on parchment (these have usually been scanned, microfiched, etc.).
10. What is a “Cloud on Title”? When the chain of title for a particular piece of real estate clear and there is either a gap in the records, or there is an adverse interest making a claim of ownership or asserting a lien against all or part of the property (e.g., mineral rights, air rights, water rights, joint tenancy, mortgage, etc.), then the chain has a cloud on it. Most clouds on title must be removed in order for you to have marketable or insurable title.
Quiet title actions can be complicated because of the procedures that must be followed, including locating and serving all of the proper parties that need to be brought into the lawsuit. Also, the issues caused by the problems of the past like Foreclosure Fraud, robosigning, and the reselling of mortgages as mortgage securities, all add to the complexity of filing a quiet title lawsuit.
In the past, quiet title actions were usually brought because a deed had a typo in the legal description of the property, including a wrong block number or condo unit number in the deed. Those cases were not complicated, a judgment was entered to fix the typo. Problem solved.
Now, quiet title actions can be more adversarial because of the mess that has been created by so many institutions disrespecting real estate law.
If you believe a quiet title lawsuit is needed to clear title to Florida real estate, a good piece of advice is to speak with an experienced Florida real estate lawyer to learn the steps involved in this type of lawsuit. Most real estate lawyers, like Larry Tolchinsky, offer a free initial consultation (over the phone or in person, whichever you prefer) to answer your questions.
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