SBM Real Property Law Section eNewsletter

November 2010

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Howard A. Lax, Lipson, Neilson, Cole, Seltzer & Garin, PC

Patricia Paruch, Kemp Klein Law Firm


Title Insurer Can Tender Deed to Insured Lender

By Phillip J. Neuman, Taubman, Nadis & Neuman, PC

The primary purpose of a lender's policy of title insurance is to indemnify a mortgage holder from any losses it may suffer if it is unable to obtain good title to the mortgaged property at the conclusion of the foreclosure process. In JPMorgan Chase Bank, N.A. v. First American Title Insurance Company, 2010 WL 2720911 (Case 09-14891, ED Mich 2010), the title agent failed to record the mortgage for a mansion on Grosse Ile and there were other problems with title to the property. First American ultimately acquired title to the property and sought to convey it to Chase. Chase refused to accept title and both sides filed complaints for declaratory relief.

The District Court decided that the case "turns on whether First American can satisfy its obligations under the title policy by conveying title to the property to Chase" where the title policy did not explicitly provide for this remedy. The Court held that the title insurer satisfied the plain meaning of the title policy's limitation of liability provision by transferring good title to the insured. The court disagreed with Chase's argument that "establishing the title" meant establishing title in the borrower rather than the lender. Chase's petition for interlocutory review is currently pending before the Sixth Circuit Court of Appeals.

This case has particular significance in the current economic climate. Under JPMorgan Chase, a lender's policy of title insurance does not constitute a guarantee of value or collection of the loan proceeds. Accordingly, a lender may have to accept title to the property even if it has a lower than expected value and the borrower does not have the means to pay any deficiency after sale of the property.

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November 4, 2010
2:00–5:00 p.m.
Homeward Bound
The ABCs of Real Estate Appraisals for Lawyers
Inn at St. John's, Plymouth

December 2, 2010
2:00–5:00 p.m.
Homeward Bound
Economics of Property Deals
Inn at St. John's, Plymouth

January 13, 2011
7:30–9:30 a.m.
"Groundbreaker" Breakfast Roundtable
Energy is Here to Stay

March 10-12, 2011
2011 Winter Conference
Willard Intercontinental
Washington, DC

New Broker Lien Law: Pay Me Now or Pay Me Later

By Ingrid Szura , Jaffe Raitt Heuer & Weiss PC

On October 5, 2010, Governor Granholm signed the Commercial Real Estate Broker's Lien Act (the Act), which enables licensed real estate brokers to attach liens for unpaid broker fees against commercial real estate if the broker has a written commission agreement and records the lien before the property's conveyance.

  • The Act only applies to written commission agreements executed after the Act's effective (October 5, 2010) and to "commercial real estate," which is defined as any property that is NOT: (i) vacant property zoned for single-family use, (ii) property with 4 or fewer residential units, or (iii) property with more than 4 residential units if such units are single-family units that are sold, leased, or otherwise conveyed on a unit-by-unit basis.
  • With respect to leases, a broker may record a lien at any time within 60 days after a lease is signed, which attaches once the tenant takes possession of the property.
  • If a broker's lien would prevent a closing, the parties shall escrow an amount sufficient to satisfy such lien, in which case the lien will be extinguished. The Act provides that a buyer or seller cannot refuse to close a transaction due to the escrow account requirement. An escrow account is not required if either (i) alternative procedures are available that will allow the transaction to close and are acceptable to all of the parties to the transaction, or (ii) the proceeds from the transaction are insufficient to satisfy such lien.
  • Any action to enforce a broker's lien must be commenced within one year after the attachment; if not, the broker's lien will be extinguished.

Attorneys representing buyers and tenants must be especially vigilant against unpaid seller and landlord broker liens since the buyer or tenant may be forced to pay the lien to avoid loss of the property or eviction.