INDUSTRY NEWS    

ALTA Advocacy Update

The Financial Crimes Enforcement Network (FinCEN) announced Nov. 15 the issuance of revised Geographic Targeting Orders (GTOs) that require U.S. title insurance companies to identify the natural persons behind shell companies used in all-cash purchases of residential real estate.

The purchase amount threshold, which previously varied by city, is now set at $300,000 for each covered metropolitan area. FinCEN is also requiring that covered purchases using virtual currencies be reported. FinCEN also is dropping the confidentiality provision and removing GTO coverage for purchases by trusts. The extended GTOs run from Nov. 17 through May 15, 2019.

Covered areas include:

• Texas: Bexar, Tarrant and Dallas counties
• Florida: Miami-Dade, Broward and Palm Beach counties
• New York: Boroughs of Brooklyn, Queens, Bronx, Staten Island and Manhattan
• California: San Diego, Los Angeles, San Francisco, San Mateo and Santa Clara counties
• Hawaii: city and county of Honolulu
• Nevada: Clark County
• Washington: King County
• Massachusetts: Suffolk and Middlesex counties
• Illinois: Cook County

FinCEN reported that previous GTOs provided valuable data on the purchase of residential real estate by persons implicated, or allegedly involved, in various illicit enterprises including foreign corruption, organized crime, fraud, narcotics trafficking and other violations. Reissuing the GTOs will further assist in tracking illicit funds and other criminal or illicit activity, as well as inform FinCEN’s future regulatory efforts in this sector.

Today’s GTOs cover certain counties within the following major U.S. metropolitan areas: Boston; Chicago; Dallas-Fort Worth; Honolulu; Las Vegas; Los Angeles; Miami; New York City; San Antonio; San Diego; San Francisco; and Seattle.

FinCEN praised the continued assistance and cooperation of the title insurance companies and ALTA in protecting the real estate markets from abuse by illicit actors.

A currency transaction report must be filed with FinCEN if these things occur:

• Location (deal occurs in one of the areas included in the GTOs)
• All-cash deal (no financing)
• Purchase price exceeds $300,000
• There’s a corporate buyer
• Purchase price paid via monetary instrument, wire transfer or virtual currencies

The report must include:

• Information about the identity of the individual primarily responsible for representing the buyer. The title company must obtain a record of the individual’s driver’s license, passport of other similar identification
• Date of closing of the covered transaction
• Total amount transferred in the form of a monetary instrument
• Total purchase price of the covered transaction
• Address of real property involved

If the purchase involved in the covered transaction is a limited liability company, the underwriter must provide the name, address and taxpayer identification number of all its members. Additionally, covered title companies must retain all records relating to compliance with the order for five years, store the records so they are accessible with a reasonable period of time and make the data available to FinCEN or other law enforcement or regulatory agency, upon request. Under the Bank Secrecy Act, covered businesses must retain all records relating to compliance with the GTOs for at least five years from the last day that the GTOs are effective (including any renewals).

ALTA has developed several tools to help members comply with the order.

Companies with questions can email FinCEN at FRC@FinCEN.gov.

We would like to update you on the status of events as it relates to ordinance 18-12 amending section 18-20.2 of the Miami | Dade County Code.

On November 8, 2018, the Miami Dade Board of County Commissioners passed an additional 120-day delay in implementing this ordinance allowing the Commissioner's office to continue to work with the real estate industry in search of a solution to meet the commission's needs. This shifts the implementation date to March 18, 2019. 

You may read the revised ordinance implementing the 120-day delay here.

This past Spring, the Florida Legislature passed several laws affecting Title and many supported by FLTA. Below are some of those laws going into effect this July. This is not to be a complete list. 

CS/HB 7087/ Taxation (Interspousal transfer and exemption from documentary stamp): Amends Florida Statute section 201.02. Real property being transferred due to a divorce is exempt by statute from documentary stamp taxes. Ironically, if one owns real property, gets married later, and wishes to add his or her new spouse to title, documentary stamp taxes would be required. There is no statutory exemption. An exemption for interspousal transfer from documentary stamp taxes was signed into law and creates an exemption for the above scenario.
Effective Date: July 1, 2018
Chapter No. 2018-118

CS/SB 512/ Homestead Waivers: Provides language which may be used to waive spousal homestead rights concerning devise restrictions, etc.
Effective Date: July 1, 2018
Chapter No. 2018-22

CS/HB 617/ Covenants and Restrictions (MRTA): Covenants and Restrictions; Authorizes certain parcel owners of a community not subject to HOA to use specified procedures to revive certain covenants or restrictions; revises interests & rights protected by filing for record within specified timeframe; revises & provides provisions relating to covenants and restrictions, including extinguishment, validity of notice, length of time certain covenants and restrictions are preserved, filing of notices, notice content requirements, requirements of property associations, & validity & enforceability.
Effective Date: July 1, 2018
Chapter No. 2018-55

CS/HB 631/ Possession of Real Property: Possession of Real Property; Authorizes person with superior right to possession of real property to recover possession by ejectment; provides that person entitled to possession of real property has cause of action to regain possession from another person who obtained possession of real property by forcible entry, unlawful entry, or unlawful detainer; prohibits local government from enacting or enforcing ordinance or rule based on customary use; provides an exception; creates, revises, & repeals related procedural provisions.
Effective Date: July 1, 2018
Chapter No. 2018-94

CS/HB 661/ Business Filings: Authorizes certain persons and entities to correct certain documents; provides that correction filed for certain reasons are not subject to department fee; requires department to send notice of filing of record through e-mail or send copy of document to mailing address of entity, representative, or agent; provides notice requirements for department if record changes entity's e-mail or mailing address.
Effective Date: July 1, 2018
Chapter No. 2018-58

CS/CS/HB 483/ Unfair Insurance Trade Practices: Revises types, value and frequency of advertising and promotional gifts that licensed insurers or their agents may give to insureds, prospective insureds, or others; authorizes such insurers or agents to make certain charitable donations on behalf of insureds or prospective insureds; prohibits title insurance agents, agencies, and insurers from giving insureds, prospective insureds, or others merchandise in excess of specified value; authorizes certain licensed insurers and agents to give specified complimentary services or discounted rates on specified services.
Effective Date: July 1, 2018
Chapter No. 2018-149

MIAMI - DADE ORDINANCE UPDATE EFFECTIVE DATE DELAYED TO MID-AUGUST 2018 We would like to take an opportunity to update you on the status of events as it relates to ordinance 18-12 amending section 18-20.2 of the Miami | Dade County Code. We are pleased to share the Board of County Commissioners has passed an additional 90-day delay in implementing this ordinance allowing the Commissioner's office to work with the Title and real estate industry in search of a solution to meet the commission's needs.  We would like to thank Commissioner Diaz, District 12, for his support and leadership in putting this delay forward. We, furthermore, very much look forward to working with the Commissioner and his team to come to mutual solution. You may read the revised ordinance implementing the 90-day delay here. It is important to note the Mayor does have a 10-day window to veto this milestone. We do not anticipate this taking place, however it is important to note. The FLTA team will keep you updated as we work to obtain additional information.

Florida Land Title Association (FLTA) is pleased to announce that the Florida Legislature addressed an inequity regarding the imposition of documentary stamps on intra-spousal conveyances.    Under current law, Florida Statute 201.02 imposes documentary stamps on most conveyances between spouses, if there is an underlying mortgage.  As an example, if a husband owned the property prior to the marriage, then added his spouse, and the mortgage balance was $300,000.00, the Department of Revenue would collect stamps on half the mortgage balance ($150,000).  Under F.S. 201.02(7), there is an exemption for the conveyance of the marital home, when the parties are involved in a dissolution of marriage.   

For many years, FLTA has worked with the Legislature to change this inequity, where it costs more to add a spouse during marriage, than to remove a spouse during divorce.  As part of the Tax Package in HB 7087, F.S. 201.02(7) will be amended to provide a new exemption for documentary stamps for the intra-spousal conveyance of homestead property.  This provision only obtains if the conveyance is completed within one year of marriage, and only for the marital home, however, when the law is implemented on July 1, 2018, real estate lawyers and estate planners will be able to assist thousands of Florida families, without adding a burdensome cost.

MIAMI - DADE AMENDS COUNTY CODE

The Florida Land Title Association tracks and weighs-in on key legislative proposals and ordinances throughout our state that have the potential to influence our industry directly. In an effort to keep our members informed and up to date on the latest developments locally, regionally and across the state, we will be generating periodic industry updates when the need arrises. We have created a brief synopsis of a recent development in South Florida that has the potential to impact our FLTA members.

Recently, the Board of County Commissioners approved ordinance 18-12 amending section 18-20.2 of the Miami | Dade County Code. The new ruling calls for the seller to disclose whether the property is within one of Miami | Dade County’s 1,070 Special Taxing Districts. The seller must include specific language on the instrument conveying property (the deed) and have the purchaser sign it. 

EXAMPLE - I HEREBY CERTIFY THAT I UNDERSTAND THAT THE PROPERTY WHICH IS THE SUBJECT OF THIS TRANSACTION IS LOCATED WITHIN _____ SPECIAL TAXING DISTRICT CREATED BY MIAMI- DADE COUNTY (OR PROPOSED TO THE BOARD OF COUNTY COMMISSIONERS) FOR THE PURPOSE OF PROVIDING LOCAL IMPROVEMENTS AND SERVICES IN THE NATURE OF _____. _______________________ Signature of Purchaser

The enforcement of this new ruling is set to begin May 17, 2018. However, there has been no clear outline as to what the penalty will be for non-compliance. Included in the new changes, the buyer will now be required to sign the deed acknowledging the disclosure. It is also unclear as to whether any liability would fall upon the title agent executing the closing should the seller not disclose the required information prior to the sale.

Currently, the new ordinance is centralized to the South Florida area, but could expand into Broward County. Our team is working with the Miami | Dade County Commission and the Mayor’s office to amend the process and garner additional clarification on the key issues we have identified. The intent of the ordinance change is positive, but the processes outlined may not be ideal which could possibly result in harming a transaction in the end. 

The FLTA team will keep you updated as we work to obtain additional information.

Tallahassee, FLA – June 15, 2017 – Florida Land Title Association (FLTA) is pleased to announce the successful passing of its HOA/COA estoppel certificate reform legislation. On Friday April 28th the bill cleared its final legislative hurdle after a three year run through the Capitol halls. Yesterday, June 14th, Governor Scott signed the bill making it law. The law, which goes into effect on July 1st provides for significant reform of an aspect of the real estate closing which has been costly and painful for Floridians and for the title and closing agents.

“This is a victory for Florida’s property owners,” said Karla Staker, President of FLTA. “Our members have been working with the Legislature for three years to ensure that the charges for the estoppel letter were fair and reasonable and that the associations provided the necessary information in a timely manner.”

The estoppel certificate or letter is required in each closing involving a condominium or homeowner’s association so that the buyer and seller receive accurate information regarding assessments and violations. The law provides for a cap in the fees an association may charge for the estoppel certificate as well as a standardized form of certificate. The bill requires the estoppel certificates to be provided within 10 days and be valid for a minimum of 30 days. The fee cap is $250 for owners who are current on their assessments. An expedited charge of up to $100 can be added on if the estoppel request asks for delivery within 3 days. An added charge of up to $150 can be charged if the owner is delinquent on assessments.

FLTA would like to thank Bill sponsors, Senator Kathleen Passidomo and Representative Byron Donalds, the broad coalition of Legislators who supported this Bill, Florida Association of Realtors, Florida Home Builders Association, and all of our members who have contributed countless hours of their time in Tallahassee and in their local districts.

Links to the final form of the bill and a sample of what the estoppel certificate form will look like.   Estoppel Reform SB398                    Estoppel Certificate Language

Representatives of the title insurance industry regularly meet with officials from the Florida Office of Insurance Regulation (“OIR”) and the Florida Department of Financial Services (“DFS”) regarding the regulation of the industry. These meetings focus primarily on forms, rules, and related industry matters.

At a recent meeting, OIR officials focused comments on Sec. 626.9541(1)(a), F. S. That provision reads in pertinent part, "(1) UNFAIR METHODS OF COMPETITION AND UNFAIR OR DECEPTIVE ACTS.− The following are defined as unfair methods of competition and unfair or deceptive acts or practices: (a) Misrepresentations and false advertising or insurance policies.− Knowingly making, issuing, circulating, or causing to be made, issued, or circulated, any . . . statement . . . which: 1. Misrepresents the benefits, advantages, conditions, or terms of any insurance policy."

OIR noted that some lender's general closing instructions require the title agent to make assurances about coverage that may not comply with Florida law, specifically Sec. 627.777, F.S., or Chapter 69O-186, F.A.C. Affirmative coverage was cited as an area of concern.

For example, one major lender requires in their general lender closing instructions the following:

Express affirmative coverage against loss is required in connection with each exception which adversely affects the property, such as easements, encroachments, violations of restrictions, common walls, overhang of eaves, porches, decks, roofs, etc.

OIR officials indicated that the title agent that assents to such a closing instruction and agrees to give affirmative coverage over any easement otherwise excepted on Schedule B is possibly misrepresenting the terms of the policy that will ultimately be issued to the lender because such coverage cannot be given.While the facts of a given title will control the final analysis, rarely are those available at the time the general loan closing instructions are presented. There was further discussion about the possibility that the requesting lender may violate the statute by making an inappropriate demand.

While we are unaware of any specific instances of enforcement by OIR or DFS against title agents or attorneys, OIR has taken this position against casualty insurance agents that alter a homeowner policy binder or Evidence of Property Insurance (“EPI”) to indicate to the lender that the policy covers "full replacement costs" or similar words that misrepresent the actual coverage.

The practice take away should be apparent. Pay attention to both general and special loan closing instructions and negotiate adjustments as appropriate. Failure to do so may result in substantial penalties under Sec. 626.9541, F.S. to both you and the requesting lender.

James C. Russick, V.P. Florida State & Gov’t Affairs

Counsel, Old Republic National Title Insurance Company

ActionLine Vol. XXXVII, No 1 Fall 2015

The US Supreme Court has upheld a key portion of President Barack Obama's healthcare law, preserving health insurance for millions of Americans.

In a 6-3 decision, the justices said that tax subsidies that make health insurance affordable for low-income individuals can continue.

The ruling preserves the law known as Obamacare, which Mr Obama considers a major part of his presidential legacy.

Republicans have vowed to continue fighting the law.

"We've got more work to do, but what we're not going to do is unravel what has now been woven into the fabric of America," Mr Obama said.

The case, known as King v Burwell, was the second major challenge the law has faced in the US's highest court.

Unlike in many other western countries, the US does not have a single-payer healthcare system. Private companies, rather than the US government, provide health insurance for US citizens.

The decision sparked celebrations outside the court in Washington

The enactment of the Affordable Care Act (ACA) - one of Mr Obama's most significant and controversial domestic achievements - in 2010 mandated that every American had to purchase private insurance. It provided the subsidies to allow many to do so.

In 2012, the mandate portion of the law was challenged in the court. The justices ruled to preserve it.

In that decision, as in the decision on Thursday, Chief Justice John Roberts surprised observers by siding with his liberal colleagues in support of the law.

"Congress passed the Affordable Care act to improve health insurance markets, not to destroy them," Chief Justice John Roberts wrote in the opinion.

Justice Anthony Kennedy dissented in 2012, but sided with the majority on Thursday.

Had the court made the opposite decision, an estimated 8.7 million people in the US would have been at risk of losing the aid that makes healthcare affordable.

Analysis - Jon Sopel, BBC North America editor

The stakes could not have been higher.

People's health (crucially important) and Obama's legacy (less important, but for him and those around him fairly vital) were at stake.

Well a politically finely balanced Supreme Court has given an emphatic, overwhelming vote in favour of the president by 6-3.

I bet "No-drama Obama" is high-fiving anyone and everyone in the White House - that is how big it is.

Obama defies lame-duck expectations

Demonstrators gathered outside the court as early on Thursday morning.

Reading updates on their mobile phones, the crowd became jubilant when they learned mid-morning that the court had ruled in their favour. Some began dancing, while others chanted "If you're covered and you know it clap your hands."

"This is a big sigh of relief for millions across the country," said Ron Pollack of Families USA, a health-care advocacy organisation. "The ACA is not just the law of the land, it will remain the law of the land".

"Today is a good day for healthcare in America," said activist Benton Strong. "I hope this is the end of the line."

Justice Antonin Scalia wrote in his dissent that the Supreme Court is setting a precedent of favouring some laws over others.

"We should start calling this law Scotuscare" Justice Scalia wrote, referring to the court's acronym. "Today's interpretation is not merely unnatural; it is unheard of."

Congressional Republicans have voted more than 50 times to undo the law.

House Speaker John Boehner said that they will continue their "efforts to repeal the law and replace it with patient-centred solutions that meet the needs of seniors, small business owners, and middle-class families".

Following the enactment of the ACA in 2010, states were given the option of establishing their own healthcare exchanges - online marketplaces for citizens to buy health coverage.

Citizens in states that refused to establish exchanges could shop for coverage on a federal exchange.

Media captionPresident Obama hailed the decision saying the Affordable Healthcare Act was "here to stay"

Rep Steve Scalise described the ACA as a "dismal failure" and vowed to continue fighting it

In the court, opponents argued that a phrase included in the law, "established by the state," meant the federal government could only provide subsidies to people in states that set up their own exchanges.

However, most Americans receiving subsidies purchase healthcare through the federal exchange, after many states decided not to set up their own marketplaces. Only 13 states and Washington DC have set up their own exchanges.

The Obama administration argued that was a too-narrow reading of the law, which spans nearly 1,000 pages, and the rest of the legislation makes clear subsidies are intended for those who meet income requirements, regardless of which exchange insurance was purchased from.

Obamacare by the numbers

citizens in 37 states depend on federal subsidies to make healthcare affordable

only 13 states and Washington, DC have established their own exchanges

over 10m people have purchased coverage through one of the new exchanges - federal or state

on average, the federal government provides a $272 (£173) monthly subsidy

Source: Reuters

The upholding of the law cements President Obama's biggest legislative victory. Limiting the subsidies could have unravelled Mr Obama's signature healthcare reforms.

Republican Congressional leader Steve Scalise said he was disappointed with the ruling and would work to have the law "repealed and replaced," echoing near-universal Republican sentiment.

"It does not change the fact that Obamacare has been a dismal failure for millions of Americans who have lost the good healthcare that they liked, and are paying more for the plans that they have," Mr Scalise said in statement.

(Bloomberg) -- The U.S. Supreme Court said people who file housing-discrimination suits don’t have to show they were victims of intentional bias, in a blow to lenders and insurers and a surprise legal victory for the Obama administration.

The 5-4 ruling upholds a category of U.S. Fair Housing Act lawsuits that civil rights groups said are especially important -- and business groups consider particularly onerous. The court said plaintiffs can base their suits on statistical evidence that a disputed policy has a “disparate impact” on a minority group.

The Obama administration has relied on the disparate-impact approach to get hundreds of millions of dollars in fair-lending settlements with Bank of America Corp., Wells Fargo & Co. and other financial companies.

“Recognition of disparate impact claims is consistent with FHA’s central purpose,” Justice Anthony Kennedy wrote for the court. The law was “enacted to eradicate discriminatory practices within a sector of our nation’s economy.”

Kennedy said disparate-impact cases should be “properly limited” so that those sued under the law have an opportunity to argue that their policies serve valid interests. He warned against the risk of “abusive” impact claims that could cause private developers to not construct low-income housing.

“Then the FHA would have undermined its own purpose as well as the free-market system,” Kennedy said.

The ruling defied expectations. The court under Chief Justice John Roberts had eliminated decades-old protections for racial minorities in other contexts, and the justices had given every indication that disparate-impact suits were next.

Aggressive Approach

Housing and Urban Development Secretary Julian Castro applauded the court’s decision, saying it protects equal opportunity for Americans.

“The Supreme Court has made it clear that HUD can continue to use this critical tool to eliminate the unfair barriers that have deferred and derailed too many dreams,” Castro said in a statement.

The decision was also praised by housing advocates. John Taylor, president of the National Community Reinvestment Coalition, said disparate-impact claims are a vital tool for enforcing fair-housing laws.

“For many years, the application of disparate-impact doctrine has helped to expose housing practices that may appear neutral on their face but have discriminatory effects on protected classes,” Taylor said.

Three Cases

The court took up the case in October even though the issue appeared settled, with every federal appeals court that considered the matter saying that disparate-impact suits were allowed. The court had to grant review in three cases before having a chance to rule. Two other cases accepted earlier were scuttled when civil rights advocates engineered settlements.

The ruling may also apply to the Equal Credit Opportunity Act, a second law invoked by the Obama administration against Bank of America and Wells Fargo.

The Consumer Financial Protection Bureau has relied on the disparate-impact doctrine in enforcing that law, which contains language similar to that in the Fair Housing Act. ECOA, as the law is known, covers auto lending as well as mortgages.

The decision is negative for mortgage and subprime auto lenders and allows the Justice Department and the CFPB to use disparate-impact claims under the ECOA, analysts at FBR & Co. said in a research note.

‘Unfortunate Consequences’

Justice Samuel Alito, in a dissent joined by the chief justice as well as Justices Antonin Scalia and Clarence Thomas, said the housing law prohibits only intentional discrimination, not practices that have only an adverse effect. The majority’s opinion will have “unfortunate consequences” for those the law is designed to help, Alito said.

“Disparate impact puts housing authorities in a very difficult position because programs that are designed and implemented to help the poor can provide the grounds for a disparate-impact claim,” he wrote.

That view was echoed by the American Bankers Association, which criticized the decision and said it wouldn’t prevent discrimination in lending.

“This approach can have unintended consequences, such as causing financial institutions to shrink their operations rather than risk litigation, hurting the very groups it is intended to help,” ABA President Frank Keating said in a statement.

Inclusive Communities

In the case before the court, Texas was fighting a lawsuit by the Inclusive Communities Project, a Dallas-based group that advocates for racially integrated housing. The organization accused state officials of thwarting integration by allocating a disproportionate number of federal low-income housing tax credits to minority neighborhoods.

A federal appeals court had said the lawsuit could go forward.

Texas Attorney General Ken Paxton said in a statement that the high court decision “places an unfair burden on landlords, lenders and developers, and will ironically lead them to make their decisions based upon consideration of race.”

The case is Texas Department of Housing v. Inclusive Communities Project, 13-1371.

To contact the reporters on this story: Greg Stohr in Washington atgstohr@bloomberg.net; David McLaughlin in Washington atdmclaughlin9@bloomberg.net

To contact the editors responsible for this story: Winnie O’Kelley atwokelley@bloomberg.net Mark McQuillan, Laurie Asseo