Underwriting Q&A
Powers of Attorney Q
WILL FIRST AMERICAN TITLE INSURE A SALE OR MORTGAGE OF PROPERTY EXECUTED BY A SUCCESSOR ATTORNEY-IN-FACT?
Q
WILL FIRST AMERICAN TITLE INSURE A GIFT OF PROPERTY EXECUTED BY A SUCCESSOR ATTORNEY-INFACT?
A
Yes, a principal may designate one or more successor attorneys-in-fact if the original attorney-in-fact resigns, dies, becomes incapacitated or declines to serve. § 709.2111(2), Fla. Stat. Where a successor attorney-in-fact will execute the instrument, the Company will require the resignation of the previous attorney(s)-in-fact be recorded. If the resignation is not in recordable format, it may be recorded as an attachment to an affidavit acceptable to the Company. Additionally, unless the POA provides otherwise, the successor attorney-in-fact has the same authority granted to the original attorney in fact. § 709.2111(2), Fla. Stat.
A
Underwriting approval is required to insure transactions involving a gift made using a POA. An attorney-in-fact has fiduciary duties to the principal and must act in good faith in a manner that is not contrary to the principal’s best interests. § 709.2114, Fla. Stat. Gifts using a POA are permissible where a principal specifically enumerates and initials a gift of real property in the POA. § 709.2202, Fla. Stat. But title agents must be wary of POAs used to convey or gift the principal’s property to attorneys-in-fact or any of their family members or related entities. § 709.2116(5), Fla. Stat.
CASE LAW UPDATES Lis pendens In an action relating to sale of commercial space in condominium building, potential purchaser who was the assignee of the condominium association’s right of first refusal filed their Lis Pendens in accordance with section 48.23, Florida Statutes because right of first refusal was duly recorded. 100 Lincoln Rd SB, LLC v. Daxan 26(FL), LLC, 3D15-1941, 2015 WL 6499331 (Fla. 3d DCA 2015). Eminent domain Attorney’s fees – “[W]hen a condemning authority engages in tactics that cause excessive litigation, the trial court shall utilize section 73.092(2) to calculate a reasonable attorney’s fee, but only for those hours incurred in defending against the excessive litigation or that portion that is considered to be in response to or caused by the excessive tactics. The remainder of the fee shall be calculated pursuant to the benefits achieved formula delineated in section 73.092(1). The two amounts added together shall be the total fee.” Joseph B. Doerr Trust v. Cent. Florida Expressway Auth., No. SC14-1007, 2015 WL 6748858, at *7 (Fla. Nov. 5, 2015). Mortgage foreclosure Conditions precedent – Default notice does not need to strictly comply with the provisions of the mortgage. “[T]he lender’s
default notice to the borrower must only substantially comply with the conditions precedent set forth in the mortgage.” Bank of New York Mellon v. Nunez, No. 3D15-83, 2015 WL 6735856, at *2 (Fla. Dist. Ct. App. Nov. 4, 2015). Homestead exemption – Summary judgment in favor of the mortgagee was improper where “genuine issue of material fact exist[ed] as to whether the homeowner established the subject property as her homestead prior to the Bank’s mortgage.” Vera v. Wells Fargo Bank, N.A., No. 4D142672, 2015 WL 6735342, at * 3 (Fla. Dist. Ct. App. Nov. 4, 2015). Standing – The trial court erred in denying defendants’ motion to dismiss foreclosure complaint where substituted plaintiff failed to establish that the original plaintiff had standing “at inception of the suit.” Dickson v. Roseville Properties, LLC, No. 2D14-1137, 2015 WL 6777155, at *3 (Fla. Dist. Ct. App. Nov. 6, 2015). Standing – Trial court erred in entering judgment of foreclosure where substituted plaintiff failed to prove that the initial plaintiff was entitled to enforce the note on the date initial complaint was filed. Seidler v. Wells Fargo Bank, N.A., 1D14-2569, 2015 WL 7008174, at *3 (Fla. 1st DCA 2015).
First American Title | Florida Legal Eagle | Volume II, December 2015/January 2016
Real property Railroads – A group of owners of land abutting a railroad brought suit against the government claiming the following: (1) that the conveyances for a railroad right-ofway to a recreational trail, pursuant to the National Trails System Act Amendments of 1983, granted only an easement for the railroad rather than fee simple title; (2) the abandonment of the railroad right-of-way entitled the landowners to claim the land free of the easements; and (3) the conversion of the land to a public recreational trail constituted a taking. The United States Court of Federal Claims entered judgment in favor of the government, and, therefore, held the landowners were not entitled to compensation. The Court of Appeals for the Federal Circuit certified a question of Florida law for the Supreme Court to answer. The Supreme Court held: (1) as provided under Fla. Rev. Stat. 2241, railroads may hold fee simple title to land acquired for the purpose of building railroad tracks; (2) no policy in Florida limits the railroad’s interest in the property, regardless of the language of the deeds; and (3) the railroad’s occupancy on the property prior to execution of deed would not affect the quality of the railroad’s property interest conveyed under laterexecuted deeds. Rogers v. United States, No. SC14-1465, 2015 WL 6749915 (Fla. Nov. 5, 2015).
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