What can you do? The easiest answer is—don’t buy the property. But if you have your heart set on that particular home, for whatever reason, that may not be an option.
In an earlier BLOG we examined the problem with using the title-holding bank’s choice of closing attorney. The problem has to do with the bank’s disincentive to assure good, marketable title. So as a buyer you simply have to protect yourself. Assuming your negotiating efforts have failed to change the bank’s mind about demanding the use of their attorney, I recommend a 2 part solution:
First, do not be satisfied with the title examination being done by the bank’s attorney. Hire your own attorney to do a full title examination. You will get no resistance from the bank’s attorney on this point, although they won’t like it much if you come back and ask them to fix something that your attorney discovered, that they were hoping to glaze over.
You will definitely get some resistance on the second part of my solution though, when you tell the bank’s attorney that you do not want to buy owner’s title insurance with them—that you will purchase it elsewhere. Attorneys make a ton of money selling this insurance, so they will not be pleased. I would recommend buying your title insurance through the same attorney that did the full title exam. This solution will cost you a little more, but the benefit is well worth the cost, and if you are savvy, you can negotiate this cost into the purchase price.
If you want a less costly solution, there is another option that will be likely met with resistance as well, but it also may be feasible. Require the bank’s attorney to do a full title exam. You could even buy title insurance with them in such case. But only do this under one resolute condition. The attorney must do a full title exam, even if you have to pay a little extra for that. In reality, you will probably be charged for a full exam regardless, because most buyers would not know the difference. If the attorney does a full exam, she has a professional obligation to do a good job. If she does not do a good job, and that is still possible, at least she will be putting her license to practice law at risk with the state board.
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Daniel R. Wilhelm
Residential Management Professional
3 Options Realty
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