[WSBARP] Sale of Real Property - Misrepresentation or Title Insurance?

[Steve Tubbs]

As I mull over this, I have to wonder:  given the walk-around and title report, was the ‘error’ not in the legal contained in the PSA?  I am struck by the unilateral action of the Title/Closing Agent in making a determination on intent where there must have been something showing acknowledgement and approval of the description contained in the Commitment.  Certainly, a conflict between the documents existed; the question is how that conflict should be resolved.  There is nothing recited about the attitude of the Estate as to this ‘problem’, where the Representative clearly signed the SWD with the Pre-2013 legal.  Was that not their intent?  If so, a Correction Deed rescinding the unilateral action by the Title/Closing Agent should pose no problem.  I’d start with the Estate, and go from there.  

> On Dec 7, 2016, at 10:18 AM, Matt Johnson <Matt at gravislaw.com> wrote:
> 
> Here is the situation
>  
> 1-      Buyer finds an approximately 4 ac piece of property for sale and calls the Broker;
> 2-      Meets with Real Estate Agent who walks the property and shows the property’s Pre-2013 boundaries to the purchaser representing those boundaries as the current boundaries on this approximately 4 ac property;
> a.       In 2013 the Decedent executed and properly recorded a boundary adjustment with survey conveying approximately .5 acres, which included an access road and a water source, to the neighbor;
> b.       There is a 2006 survey on record that accurately depicts the Pre-2013 legal;
> 3-      Seller is an Estate of Decedent;
> 4-      PSA is signed containing the post-2013 legal description containing approx. 3.5 acres;
> a.       Real Estate Broker serves as both seller and buyer agent;
> 5-      Title/Closing Agent issues Commitment with Pre-2013 legal description and includes tax maps and a 2006 survey that confirms the Real Estate Agents’ prior boundary  representations;
> 6-      All loan documents and the appraisal rely on the Pre-2013 legal;
> 7-      The Purchasers’ are convinced that they purchased property according to the Pre-2013 legal;
> 8-      SWD and DOT are recorded with Pre-2013 legal description;
> 9-      A month later the Title/Closing Agent discovers the mistake and re-records SWD and DOT with Post-2013 legals.
> 10-   After recording, Title/Closing Agent mails the Title Insurance Policy with the correct Post-2013 legal and the re-recorded deeds.
> 11-   Estate of Decedent has distributed the proceeds of sale and closed the estate.
>  
> Purchaser is not happy as the access road and water are key factors in their decision to purchase the property. When I first received this, I thought it was a clear title claim, but the purchaser never contracted to purchase the Pre-2013 property because the PSA used the Post-2013 property legal description which I would think absolves the title insurer. Possibly misrepresentation on the brokerage or some form of negligence theory against the title/closing agent?
>  
> Where should the purchaser look for a remedy in this situation?
>  
> Regards,
>  
> Matthew R. Johnson | Attorney at Law
> Gravis Law, PLLC
> P.O. Box 182 | 350 E. Main St.
> Dayton, WA 99328
> 509-382-2030 (office)
> Website  <https://www.gravislaw.com/>- LinkedIn <https://www.linkedin.com/pub/matthew-r-johnson/2b/997/87a>
>  
> NOTICE:  This email (including any attachments) is covered by the Electronic Communications Privacy Act (EPCA), 18 U.S.C., Sec. 2510 - 2522, is confidential and privileged.  This email is solely for the personal and confidential use of the recipient(s) named above.  Receipt by anyone other than the individual recipient(s) is NOT a waiver of attorney-client privilege.  Any violation of the ECPA is subject to the penalties stated therein. If you have received this message in error, please notify me immediately by reply e-mail to matt at gravislaw.com <mailto:matt at gravislaw.com> and immediately delete the original message.
>  
> _______________________________________________
> WSBARP mailing list
> WSBARP at lists.wsbarppt.com <mailto:WSBARP at lists.wsbarppt.com>
> http://mailman.fsr.com/mailman/listinfo/wsbarp <http://mailman.fsr.com/mailman/listinfo/wsbarp>
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mailman.fsr.com/pipermail/wsbarp/attachments/20161208/9da57b85/attachment.html>