On November 28, 2018, the Office of Insurance Regulation (OIR) hosted a workshop addressing the Agents' Data Call worksheet. The purpose was primarily for the public to provide input and comment for consideration to amend the Data Call. Following the workshop OIR opened a period of time for written responses to be received. 

With the help of member input received over recent months, several FLTA members and FLTA consultants worked tirelessly to draft a redline revision. As a result, an official submission was delivered to OIR for consideration this week.        

While many areas were reviewed for simplification or clarification, it was also recommended to omit certain areas. View the recommendations to stay in the know:

            Letter to OIR

            FLTA Redlined Data Call - Excel

From here, it is anticipated that OIR will consider the public submissions, draft their own revisions and then hold another public meeting for additional review and comment. The exact timing of this is not known at this time and these changes (should they be adopted) will not impact the current Data Call deadline of May 31, 2019 for 2018 data.  

After hosting it's first committee meeting of the year, the Cyber Security Committee warns of a new Phishing Scam focused on title agents. With the use of email spoofing a member received an email from what appeared to be a local municipality requesting a proposal for several services related to the sale of deed restricted town homes. After contacting the presumed sender it was verified they had not been the sender of the email. It is not known what the outcome could have been had a response been given.

The Committee stresses the importance of verifying.

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