by Bruce L. Dorner
My Warranty Deed is my shield and protector!
“Of course the title to my house is good. I have a Warranty Deed!” Oh, if only that were true. A Warranty Deed in New Hampshire is an affirmative statement by the seller of real estate that, in essence says, “I own it lawfully, that there are no encumbrances except as stated, that I have the right to sell it, and that I, my heirs, executors and administrators shall warrant and defend the title for the buyer and his heirs, successors and assigns.”
Well, isn’t that good enough? In good lawyer parlance, maybe! The issue of a title defect or problem often doesn’t arise for many years after the house is purchased. Most often it arises when you go to sell the house and the new buyer has an attorney or title company check the records at the county registry of deeds to verify the accuracy of the documents leading up to your purchase of the house.
Let’s assume that you’re ready to sell your house and you’ve listed it with a broker, got it all spiffed up, and have the nice magazines and fresh flowers on the table to impress prospective buyers. The diligent broker brings you a contract from a buyer at your asking price and you’re thrilled. The document is signed and the administrative machinery takes over at the buyer’s bank. They ask their attorney to check the title to your house. Two weeks later your broker calls to tell you that there’s a problem. In 1982 the neighborhood where your house sits was subdivided. The deed at that time made reference to rights for the seller of the subdivision and his heirs to draw water from a well on the land. Where’s the well? No one recorded a map showing the location of the well? Is the well on your lot or on one of your neighbors? Does the well still exist? Is the original seller of the subdivision still around? Is he dead? Who are his heirs? And, the one that most home owners state, “who cares if no one has gone looking for the well in more than 30 years!”
This is only one example of the type of problem encountered when examining titles. Occasionally we find that a driveway is on a portion of your neighbor’s land. Maybe a former owner granted an easement for your neighbor to have a garden on that back land which was of no import “way back when.” Maybe there’s an old path or logging road that was used at the turn of the century to get to the “back land.”
These types of items are regularly noted in your deed. However, are they adequately described? Did you REALLY read them, discuss them with your attorney, and get a comfortable understanding of what they mean? Oh, you didn’t hire your own attorney for the purchase of your home! You relied on the bank attorney to do it all for you. I’ll bet you forgot about the document the bank attorney had you sign that said he was representing the bank, not you, and that you may want to hire your own attorney.
There’s no way we can create a perfect world. Real estate title problems will continue to exist as the population increases. You can take steps to reduce the risk. Hire an attorney to represent you before you sign any contracts. Work with your attorney to guide you through the purchase or sale of your home. Ask questions. Purchase an owner’s policy of title insurance. It is regularly offered at the closing and will provide an added layer of protection from many types of claims. Remember that the bank had you pay for title insurance to protect their interest. Why don’t you do the same for your most expensive investment?
This article provides general information only. It is not legal advice. You should consult with your own attorney before making any legal decision.