May 17, 2023


This article provides a detailed overview of title insurance exclusions, their various types, and their impact on real estate transactions. The reader will learn about the definition and importance of title insurance, the common claims it covers, and why exclusions exist. They will also discover different types of exclusions, like standard and customized, as well as tips for identifying excluded risks in the title policy through reading the title commitment and understanding policy exceptions.

Additionally, the article gives advice on how buyers can address title insurance exclusions through due diligence, obtaining endorsements, and negotiating with the seller or lender. Lastly, the impact of exclusions on the real estate transaction is explored, including potential risks, increased negotiation, delays in closing, and financial implications on both buyers and sellers.

Exploring Title Insurance Exclusions

Title insurance is an essential aspect within the process of buying or refinancing a property. This insurance policy safeguards the property owner, or borrower, against defects and issues with the property’s title. However, title insurance policies contain various types of exclusions, which are critical to comprehend before finalizing any real estate transaction.

Definition and Importance of Title Insurance

Title insurance refers to a form of indemnity insurance that protects the holder against financial loss due to defects in the title of real property, which may result from various factors such as liens, encumbrances, and errors in the public record. Title insurance policies are generally issued during the purchase of a property or a mortgage refinance process.

The primary focus of title insurance is to ensure that the property’s ownership history and all relevant public records are thoroughly examined to verify the ownership structure and existence of any discrepancies. This examination is crucial, as it protects property owners and lenders from potential legal disputes, property loss, or financial damages incurred due to errors or defects in the property’s title.

Title insurance is essential for various reasons, including shielding property owners from financial liability and providing assurance that the purchase or refinancing process proceeds smoothly. Considering the complexity of real estate transactions and the countless scenarios that could potentially lead to property loss, title insurance offers an essential protection level by mitigating these risks.

Commonly Covered Title Insurance Claims

Although title insurance policies vary based on the provider and jurisdiction, some common claims are covered across most policies:

  1. Errors in the public record: This typically includes incorrect information about the property’s ownership, erroneous legal descriptions of the property, or errors in recording transactions.

  2. Undisclosed heir claims: These claims arise when a supposed heir to a former property owner comes forward to claim the property after the sale has occurred.

  3. Fraud and forgery: This covers cases where someone commits fraud or forges documents related to the property’s title or ownership.

  4. Mechanic’s liens: These liens may be placed on a property by construction workers, subcontractors, or suppliers who were not paid for work performed on-site. If this lien is discovered after purchasing the property, it becomes the new owner’s responsibility to settle the debt.

  5. Encumbrances: An encumbrance is a claim, charge, or liability that affects the ownership of a property. Examples include unpaid taxes, easements, or assessments.

Why Title Insurance Exclusions Exist

Title insurance exclusions are specific items that the policy does not cover. They exist because title insurance companies cannot predict or control certain risks, and cannot provide coverage for every potential issue related to a property’s title. Title insurance exclusions vary depending on the policy, but they generally fall into the following categories:

  1. Items listed in the public record: Anything that is present on the public record before obtaining the policy is generally excluded from coverage. This includes liens, easements, and other encumbrances.

  2. Rights of possession: Title insurance policies typically exclude claims related to possession rights, such as leaseholds, licenses, or easements.

  3. Building and zoning laws: Policies exclude claims related to violations of building and zoning laws, as well as any claims that arise due to illegal or unpermitted property improvements or uses.

  4. Environmental issues: Items such as hazardous waste or contamination are typically excluded from coverage.

  5. Boundary disputes: Title insurance often does not cover disputes regarding property boundaries, as these matters frequently require a survey or inspection to resolve.

It is important for property owners and buyers to carefully review their title insurance policy’s exclusions before finalizing any transaction. Armed with this knowledge, you can make informed decisions and be better prepared to mitigate potential risks related to your property’s title.

Types of Title Insurance Exclusions

Title insurance is a unique form of indemnity insurance that protects the policyholder against financial loss resulting from defects in the title of real property. These defects can include liens, encumbrances, and other title irregularities. However, title insurance policies do not cover all possible circumstances that could affect the title. These exceptions fall into two main categories: standard exclusions and customized exclusions. This article will provide an overview of each type of exclusion.

Standard Exclusions

Standard exclusions are typically found in most title insurance policies and are not tailored to a specific transaction or property. They usually cover the following scenarios:

  • Defects Known by the Insured: Title insurance will not cover defects in a property’s title that the buyer was aware of prior to purchasing the property. This is because the buyer should have addressed these issues during the negotiation process or chosen not to proceed with the transaction based on the information. It is essential for buyers to disclose any known issues with the title during the underwriting process to avoid potential coverage pitfalls.

  • Governmental Regulations: Title insurance policies usually exclude loss or damage arising from the violation of building codes, zoning ordinances, or other governmental regulations relating to the use and improvement of the land. As a property owner, it is your responsibility to ensure that the property is being utilized and improved within the bounds of governing regulations.

  • Native Title Claims: In some jurisdictions, Indigenous or native peoples may have legal claims to land based on ancestral or historical ownership. Claims like these are often excluded from title insurance policies because they can be difficult to verify, and their outcomes can be uncertain.

  • Easements and Encroachments Not Shown on the Policy: Title insurance typically does not cover any easements, encroachments, or boundary disputes that are not specifically mentioned in the policy. Easements are legal rights over another’s land, while encroachments occur when structures or other improvements extend onto someone else’s property. It is important to conduct a thorough land survey and analysis of the property’s legal description prior to purchasing to identify potential easement and encroachment issues.

Customized Exclusions

Customized exclusions, also known as “special exceptions,” are unique to a specific property or transaction. They frequently cover the following situations:

  • Previous Tax Liens or Judgments: If a title search reveals previous tax liens or judgments against the property, a title insurance policy may exclude coverage for any related financial loss. Savvy buyers should negotiate with the seller to resolve or pay off any outstanding liens or judgments before closing.

  • Restrictive Covenants: Restrictive covenants are limitations placed on a property’s use, often by developers or previous owners, to maintain certain standards in a community. Title insurance may not protect against loss or damage resulting from the violation of restrictive covenants. Homebuyers should fully understand and accept these covenants before purchasing a property.

  • Agreements Between Neighbors: Agreements between neighbors, such as shared driveways or fences, may not be covered by title insurance. Prior to purchasing a property, it is important to verify the status of any arrangements with neighbors and ensure the proper legal documentation is in place.

In summary, while title insurance plays a crucial role in protecting property owners from financial loss due to title defects, it is essential to understand the various standard and customized exclusions that may apply. To best safeguard your investment, be proactive in identifying potential title issues and educating yourself about the specifics of your policy.

Identifying Excluded Risks in the Title Policy

A title policy is an insurance policy that protects both buyers and lenders from financial loss due to title defects, such as liens, encumbrances, and other issues affecting the real property. However, not all risks are covered by a title policy, and it’s crucial to understand the excluded risks in your policy. This article will guide you through identifying excluded risks in the title policy by reading the title commitment and understanding policy exceptions.

Reading the Title Commitment

The title commitment is a document issued by the title company before closing that outlines the terms and conditions of the title policy. It is organized in different sections, commonly referred to as “schedules”. Reading and understanding the title commitment will help you identify the excluded risks in the policy. Here are the main schedules you’ll find in a typical title commitment:

Schedule A: Policy Information

This section contains basic information regarding the title policy, including the proposed insured amounts for both the owner’s and lender’s policies, the names of proposed insured parties, the legal description of the property, and the effective date. It is important to review this information to ensure accuracy, but it does not directly relate to excluded risks.

Schedule B-I: Requirements

Schedule B-I lists the specific requirements that must be met before the title policy can be issued. While this section does not list excluded risks, it may contain information that can alert you to potential issues. Examples of requirements include the need for the seller to provide a release of a lien, the buyer and seller to sign a deed, or, in the case of a mortgage, the execution and recording of a mortgage document.

Schedule B-II: Exceptions

This is the section where you’ll find the excluded risks in the title policy. Schedule B-II lists the exceptions to the policy’s coverage, which means these are the items that the title company will not cover if a claim arises. Understanding these exceptions are crucial, as they can affect your rights as an owner, or, if you are a lender, the collateral securing the loan.

Understanding Policy Exceptions

The exceptions in Schedule B-II can generally be broken down into two categories: standard exceptions and specific exceptions.

Standard Exceptions

Standard exceptions are common items that are automatically excluded from coverage unless they are specifically endorsed and included in the policy. Some examples of standard exceptions are:

  1. Rights or claims of parties in possession, such as tenants or lessees.
  2. Easements or claims of easements not shown in the public records.
  3. Encroachments, overlaps, boundary line disputes, or other matters that would be revealed by an accurate survey and inspection of the property.
  4. Any liens or rights to lien for services, labor, or material provided that are not filed in the public records.
  5. Taxes or special assessments not yet due and payable.

You can request to have some of these standard exceptions removed by providing the necessary documentation or obtaining endorsements.

Specific Exceptions

Specific exceptions are exclusions related to particular items that affect the property in question. These can include:

  1. Recorded easements or rights-of-way.
  2. Deed restrictions or protective covenants.
  3. Liens or claims against the property, such as tax liens or mechanic’s liens.
  4. Claims or rights of others that may affect your ownership or use, such as leases or life estates.

It’s essential to carefully review the specific exceptions listed in Schedule B-II to ensure you understand the potential risks associated with the property. If you’re uncomfortable with any of the listed exceptions, discuss them with your title agent, attorney, or real estate agent to identify possible solutions, such as title endorsements, which can be purchased to provide coverage for certain exceptions under specific circumstances.

In summary, identifying excluded risks in the title policy is crucial before closing on a property. By carefully reviewing your title commitment, especially Schedule B-II, and understanding standard and specific exceptions, you’ll be better prepared to protect your rights as a property owner or lender.

Addressing Title Insurance Exclusions

Title insurance is a form of indemnity insurance that protects property owners and lenders against losses resulting from defects in the title, such as liens, encumbrances, or ownership claims. Title insurance policies typically include exclusions and exceptions.

These are particular risks, defects, or issues related to the property’s title that the insurer will not cover. In this article, we will discuss strategies for addressing title insurance exclusions, potential endorsements, and negotiations with sellers and lenders.

Due Diligence by the Buyer

The first step in addressing title insurance exclusions is for the buyer to conduct due diligence before purchasing the property. This involves gathering as much information about the property’s history and potential title issues as possible. This process typically includes two main elements: property inspection and survey, and research into public records.

Property Inspection and Survey

Property inspections and surveys help buyers identify possible issues with the property that may impact a title insurance policy. For example, a property survey may reveal encroachments or easements, which could be excluded from coverage under the policy.

During a property inspection, a professional inspector will look for any potential problems with the property, such as structural damage or code violations. Similarly, a property survey will evaluate and map the property boundaries, disclosing any encroachments, easements, or other issues that may affect the title.

Research into Public Records

Buyers should also investigate public records related to the property, such as deeds, tax assessments, and zoning regulations, to discover any potential title defects. Additionally, researching any recorded restrictions, easements, or encumbrances can help a buyer better understand the property’s title history and what exclusions may apply to their title insurance policy.

If a buyer discovers any potential issues during their due diligence, they can discuss these matters with their title insurance agent and attorney to address the exclusions and negotiate appropriate endorsements or compensations with the seller or lender.

Obtaining Endorsements

Endorsements are amendments to a title insurance policy that extend coverage to include specific issues or risks that are otherwise excluded. The process of obtaining endorsements involves working with the title insurance agent and underwriter to draft a policy amendment that includes the desired coverage. Some common types of endorsements for title insurance include:

Types of Endorsements

  1. Survey endorsement: Provides coverage for survey-related issues, such as encroachments or easements not disclosed in the public records.
  2. Access endorsement: Guarantees that the property has legal access to a public street or road.
  3. Zoning endorsement: Covers losses due to non-compliance with zoning ordinances.
  4. Environmental protection lien endorsement: Protects against any loss resulting from environmental cleanup liens.
  5. Condominium or planned unit development endorsement: Covers unique issues specific to condominiums or planned unit developments.

Cost of Endorsements

The cost of endorsements varies depending on several factors, including the specific type of endorsement, the risk level, and the insurer. In general, endorsements may cost anywhere from a nominal fee up to several hundred dollars each. However, the added protection may be well worth the cost for buyers seeking additional coverage for specific risks or issues related to the property’s title.

Negotiating with the Seller or Lender

If a buyer uncovers potential title issues or defects during their due diligence or if they want to add endorsements to their policy, it is crucial to negotiate these matters with the seller or lender. Negotiations may involve addressing excluded risks through compensation or modifying the loan conditions to protect the buyer.

Seller’s Compensation for Excluded Risks

If a title issue or defect is discovered before the sale, the buyer may request that the seller provide compensation or remedy the problem. This may include paying the buyer for the cost of the endorsement or resolving the title defect themselves. A buyer can leverage these issues in their negotiations, as the seller may be more willing to address or compensate for such risks to finalize the sale.

Loan Conditions Related to Exclusions

Finally, the buyer can also negotiate with the lender regarding loan conditions tied to title insurance exclusions. For example, a buyer could request that the lender require specific endorsements or make the loan contingent upon resolving certain title issues. By addressing title insurance exclusions through negotiations with the seller and lender, a buyer can ensure they are adequately protected and that the transaction proceeds smoothly.

How Exclusions Affect the Real Estate Transaction

Exclusions in a real estate transaction refer to specific items, features, or aspects of a property that will not be included in the sale. These can range from appliances and fixtures to rights or claims related to the property. Exclusions can have significant effects on the real estate transaction, adding complexities and potentially causing delays.

This section will explore the risks associated with unexpected claims due to exclusions, increased negotiation and communication between parties, the potential for delays in the closing process, and the financial impacts on buyers and sellers.

Risks of Unexpected Claims due to Exclusions

One of the major risks associated with exclusions in a real estate transaction is the potential for unexpected claims to arise. Exclusions can be based on legal, financial, or personal reasons, making it possible for previously unknown claims or challenges to emerge during the transaction process.

These claims may affect the buyer’s ability to finalize the purchase or the seller’s ability to transfer ownership, potentially leading to legal disputes or financial losses. To minimize this risk, both buyers and sellers should engage in thorough research and due diligence when dealing with exclusions. This may include obtaining title reports, thorough property inspections, and engaging legal and financial experts.

Increased Negotiation and Communication Between Parties

Exclusions can also lead to increased negotiations and communication between the buyer and seller, particularly if they involve valuable or desirable items. In these instances, parties must be prepared to discuss and negotiate the terms of the exclusion to reach a satisfactory agreement.

This can require a higher level of detail and specificity in contracts and may lead to additional rounds of negotiation or amendments to purchase agreements. Maintaining clear communication throughout this process is essential for both parties to understand the full scope of the exclusion and how it impacts the overall transaction.

Potential Delays in the Closing Process

When exclusions are involved in a real estate transaction, there is a potential for delays in the closing process. This can arise due to the time needed for thorough due diligence, negotiating the terms of the exclusion, or resolving any unexpected challenges that emerge during the transaction.

Delays can be costly and frustrating for both buyers and sellers, so it is essential to manage and prioritize the resolution of exclusions and related issues in a timely manner. Having experienced legal and real estate professionals involved in the transaction can help both parties navigate these complexities and minimize the risk of delays.

Financial Impact on Buyers or Sellers

Exclusions can have a significant financial impact on both the buyer and the seller in a real estate transaction. For the buyer, exclusions may result in additional expenses for items or features that must be acquired or replaced after the property is purchased. In some cases, the costs may be substantial, such as with major appliances, repairs, or upgrades that were not included in the sale.

For the seller, exclusions may impact the final sale price of the property, as buyers may be less willing to pay top dollar for a property that does not include important features or rights. To minimize the financial impact of exclusions, parties should carefully assess the value of the items being excluded, negotiate accordingly, and factor these costs into their overall budget and financial planning.

Title Insurance Exclusions FAQs

1. What are title insurance exclusions?

Title insurance exclusions are specific risks or defects stipulated in the insurance policy that are not covered by the insurer. These exclusions limit the indemnification provided by the insurance provider, ensuring that they only cover the risks they deem acceptable.

2. What is the significance of understanding title insurance exclusions?

Understanding title insurance exclusions is essential for both buyers and sellers, as it clarifies the extent of coverage the policy offers. It prevents future disputes or unexpected financial losses that might arise from undisclosed defects or issues that the insurance does not cover.

3. How can one identify title insurance exclusions within a policy?

Title insurance exclusions are usually found in the “Exclusions or Exceptions” section of the insurance policy. The language can be technical, so careful review and consultation with legal or real estate professionals are advised to fully comprehend the excluded risks.

4. Are there any common title insurance exclusions?

While policies may vary, common title insurance exclusions often include government regulations or zoning issues, environmental restrictions, easements, issues arising from prior mortgages or judgments, and issues not discovered due to an accurate survey or public records search.

5. Can title insurance exclusions be modified or removed?

Yes, it is sometimes possible to modify or remove certain exclusions in a title insurance policy. A buyer can request clarification or removal if they believe the policy does not offer adequate protection. However, the negotiation process may incur additional costs and time.

6. Are there any alternatives to purchasing a policy with exclusions?

Buyers concerned with title insurance exclusions may consider title opinion letters and endorsements. A title opinion letter from an attorney outlines the property’s title history and potential issues, while endorsements add specific coverage or modify the terms of the insurance policy.

About the Author

As a native Washingtonian, Carlos Reyes’ journey in the real estate industry began more than 15 years ago when he started an online real estate company. Since then, he’s helped more than 700 individuals and families as a real estate broker achieve their real estate goals across Virginia, Maryland and Washington, DC.

Carlos now helps real estate agents grow their business by teaching business fundamentals, execution, and leadership.

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