[WSBARP] Listing exceptions to title in deed versus "boiler plate" reference to exceptions of record

Thu Sep 22 16:50:38 PDT 2016

I think John is precisely correct.  If I represent the seller I do not object if escrow drafts the deed with the broad ‘boilerplate” clause.  But, when I represent a buyer I include a specific term in the offer requiring the deed to be subject only to specially excepted items that survive closing.

There is at least one large escrow company that uses a ridiculous “marketability” clause in lieu of either of the above.  I think it is an even worse option for both buyer and seller and I do not understand what they think it accomplishes because it does not contain the phrase “subject to” or language even close to that effect.  I have literally asked them what does this clause mean and gotten at best, a lame explanation about a “condition of title” provision in the NWMLS form purchase and sale agreement.  

My contract language specifically says that such a clause will not be permitted.  If I can’t get that term into the deal or the client wants a super clean offer to try and win a competitive bidding situation, I have gotten this marketability language removed from the deed by pointing out it is not included in the Limited Practice Board forms and that they are engaging in the unauthorized practice of law by inserting it.  They politely agree to my request at that point.

Marc Holmes

Holmes Law Group PLLC

808 5th Ave N

Seattle WA 98109

 <http://holmeslawgroup.com/> HolmesLawGroup.com

marc at holmeslawgroup.com

Ofc: 206-357-4224

Cell: 206-849-0853

From: wsbarp-bounces at lists.wsbarppt.com [mailto:wsbarp-bounces at lists.wsbarppt.com] On Behalf Of John McCrady
Sent: Thursday, September 22, 2016 4:13 PM
To: WSBA Real Property Listserv
Subject: Re: [WSBARP] Listing exceptions to title in deed versus "boiler plate" reference to exceptions of record

Here is a question I have never considered.  Perhaps someone out there has considered it?

A seller would want to use the boilerplate, so as to avoid liability for any record title issues.

A buyer would want to require a specific listing of the exceptions, so as to retain the ability to go against the seller for un-listed title issues.

Escrow should be a neutral third party.  As such, how does the LPO choose between the two options, knowing that each option will leave one of the parties in a disadvantageous position?  

John McCrady

Counsel

Puget Sound Title Company

5350 Orchard Street West

University Place WA 98466

253-476-5721

From: wsbarp-bounces at lists.wsbarppt.com [mailto:wsbarp-bounces at lists.wsbarppt.com] On Behalf Of Tom J. Westbrook
Sent: Thursday, September 22, 2016 3:59 PM
To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com>
Subject: Re: [WSBARP] Listing exceptions to title in deed versus "boiler plate" reference to exceptions of record

Randy,

I have litigated this issue with a title company in the past 3 years. Had the closing agent used what you refer to as “boilerplate” language you reference, my client would not have been successful. Instead, the LPO used the exceptions from the title report and because there was an error in the title report in the reference to a matter of record, the title company lost. If I were advising an LPO, I would recommend to use the “boilerplate” general language.

Sincerely,

Tom

Thomas J. Westbrook

Attorney at Law

cid:image001.jpg at 01CFC835.0D3988D0

Rodgers, Kee & Card, P.S.

324 West Bay Drive NW, Suite 201

Olympia, Washington  98502

Phone: 360-352-8311

Facsimile: 360-352-8501

Email: tjw at buddbaylaw.com

Skype: thomas.westbrook

www.buddbaylaw.com

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From: wsbarp-bounces at lists.wsbarppt.com [mailto:wsbarp-bounces at lists.wsbarppt.com] On Behalf Of Randall Cornwall
Sent: Thursday, September 22, 2016 2:43 PM
To: WSBA Real Property Listserv
Subject: Re: [WSBARP] Listing exceptions to title in deed versus "boiler plate" reference to exceptions of record

Small clarification of my last question - I'm looking at this from the perspective of representing the escrow company - not the buyer or seller.

Thanks, -Randy.

___________________________

Randall J. COrnwall

DEMCO LAW FIRM, P.S.

(206) 203-6000

On Thu, Sep 22, 2016 at 2:28 PM, Randall Cornwall <rcornwall at demcolaw.com> wrote:

Does anyone have a strong opinion one way or another when it comes to the necessity of listing out all of the exceptions, easements, ect. on a warranty deed versus using a blanket statement something along the lines of:

"This conveyance is subject to any and all exceptions, easements, restrictions, leases, mineral and royalty reservations of public record."  

An LPO is telling me that they are taught that language equivalent to the above is sufficient, and listing out (or attaching as an exhibit) all of the exceptions ect. called out in the in the title report is not necessary.

Thanks in advance for your feedback.

-Randy.

___________________________

Randall J. COrnwall

DEMCO LAW FIRM, P.S.

(206) 203-6000

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