Seeking advice about real estate transaction

[Crystal]

My Mom’s house in Birmingham is titled in the name of her trust, of which Mom was the trustee. When Mom died last year, I became the successor trustee of the trust. I am selling Mom’s house.

When I accepted an offer to buy the house last month, I signed a purchase agreement. Among the several pages of legalese was one condition to which I agreed:

10. TITLE EVIDENCE AND SURVEY. Seller agrees to order title insurance within fourteen [[14) calendar days of acceptance of offer and to furnish Buyer a Commitment of Title Insurance to be issued without standard exceptions. Buyer to secure and pay for a survey, if required. After closing, a Policy of Title without standard exceptions will be issued in the amount of purchase price, bearing date of closing or later guaranteeing title in condition required for performance of Agreement. Title Commitment shall be "marked up" at closing insuring through date of recording.

“without standard exceptions” means that I must swear under oath to an affidavit containing 14 statements having to do with me being the owner, that possession of the land has been peaceable and undisturbed, that title to the land has never been disputed, that there are no unpaid taxes or liens, that no changes have been made to the land, that there are no tenants, etc.

Understandably, the title company wants to make sure the there are no unrecorded disputes or other problems, and to make sure the title is free from defects or encumbrances.

Fair enough.

The problem is that I cannot swear to the affidavit because I am not the owner and I have no knowledge about any problems with the property that might have occurred before my Mom died last September. I could certainly swear to the affidavit covering the time from last September until now. And I could certainly sign a statement that says I’m not aware of any problems with the property. [[Mom and Dad bought the home in 1962.)

The attorney for the title company writes: “To have a policy without standard exceptions the affidavit must be completed. If your client was not aware of the facts necessary to complete the affidavit they should not have agreed to provide a policy without standard exceptions. Thanks.”

Again, fair enough. It looks like I have obligated myself in the PA to something that I cannot provide.

My question that no one has been able to answer is:

How is a sale handled, when an adult child sells their deceased parent's home? I'm thinking that situation happens relatively often. In that case, there is probably a different form that the adult child signs. The adult child would have the authority to sell the home, but would not have the knowledge to be able to swear to the statements on the Seller's Affidavit.

The attorney for the title company won’t budge, but I am not able to sign an affidavit containing statements to which I have no knowledge.

I’d like to drive over to REO’s HQ in Southfield and raise a fuss, but I’m certain that won’t help either.

Thanks for any advice about how to get out of this mess.

[pkbroch]

My Mom’s house in Birmingham is titled in the name of her trust, of which Mom was the trustee. When Mom died last year, I became the successor trustee of the trust. I am selling Mom’s house.

When I accepted an offer to buy the house last month, I signed a purchase agreement. Among the several pages of legalese was one condition to which I agreed:

10. TITLE EVIDENCE AND SURVEY. Seller agrees to order title insurance within fourteen [[14) calendar days of acceptance of offer and to furnish Buyer a Commitment of Title Insurance to be issued without standard exceptions. Buyer to secure and pay for a survey, if required. After closing, a Policy of Title without standard exceptions will be issued in the amount of purchase price, bearing date of closing or later guaranteeing title in condition required for performance of Agreement. Title Commitment shall be "marked up" at closing insuring through date of recording.

“without standard exceptions” means that I must swear under oath to an affidavit containing 14 statements having to do with me being the owner, that possession of the land has been peaceable and undisturbed, that title to the land has never been disputed, that there are no unpaid taxes or liens, that no changes have been made to the land, that there are no tenants, etc.

Understandably, the title company wants to make sure the there are no unrecorded disputes or other problems, and to make sure the title is free from defects or encumbrances.

Fair enough.

The problem is that I cannot swear to the affidavit because I am not the owner and I have no knowledge about any problems with the property that might have occurred before my Mom died last September. I could certainly swear to the affidavit covering the time from last September until now. And I could certainly sign a statement that says I’m not aware of any problems with the property. [[Mom and Dad bought the home in 1962.)

The attorney for the title company writes: “To have a policy without standard exceptions the affidavit must be completed. If your client was not aware of the facts necessary to complete the affidavit they should not have agreed to provide a policy without standard exceptions. Thanks.”

Again, fair enough. It looks like I have obligated myself in the PA to something that I cannot provide.

My question that no one has been able to answer is:

How is a sale handled, when an adult child sells their deceased parent's home? I'm thinking that situation happens relatively often. In that case, there is probably a different form that the adult child signs. The adult child would have the authority to sell the home, but would not have the knowledge to be able to swear to the statements on the Seller's Affidavit.

The attorney for the title company won’t budge, but I am not able to sign an affidavit containing statements to which I have no knowledge.

I’d like to drive over to REO’s HQ in Southfield and raise a fuss, but I’m certain that won’t help either.

Thanks for any advice about how to get out of this mess.

Hire a good real estate attorney. I was in the very same situation several years ago and my attorney handled every thing. Just pay them with the proceeds of the sale price.

[gnome]

Crystal, I am sorry for your loss. I enjoyed meeting your Mom, she seemed like a lovely lady.

[Canthisbe]

I have usually gotten the title company to accept the affidavit with the qualification of a party who was not the "owner" until recently to state that "to the best of my knowledge and information" that these matters are true. Bring it up at the closing. Most of the time the closing agent will accept it without calling the title company attorney. If not, see if buyer will waive the "without exception" provision. [[Real estate attorney).

[Crystal]

Thank you so much. I'm thinking this will work out, as many properties are sold by banks, heirs, conservators, and other non-owners. It just can't be that the only acceptable title policy is one without exceptions.

I'd be happy and willing to swear to the statements to the best of my knowledge and information. In the 50+ years my parents [[and then, Mom) owned the home, I never heard of any unpaid bill, any dispute, or any argument about the property.

[Meddle]

Hire a good real estate attorney.

Was it really necessary to quote the entire multi-paragraph post just to say that?

[gazhekwe]

Attorneys do earn their money. Can you imagine the tedium of reading every word of the fine print so you know what you are agreeing to and taking care of adjusting things prior to signing?

[campbellsimon]

I agree that hiring a real estate attorney is the best way to go. But on the other side of the coin, you are signing the affidavit for the time you were personally knowledgeable about the home. If I buy a house and flip it in 6 months, I can sign an affidavit in all honesty for the 6 months I owned the house. Whether is means anything to the Title Company or Buyer is for them to decide.

I think this is where the attorney comes in. Does the affidavit represent only the time you were a trustee or are you speaking for the estate during the whole period of ownership of your parents?

Another option, look into the policy without exceptions. Find out what is the insurable difference between the town. I assume that a policy without exceptions is going to be more expensive. If acceptable to your buyer, maybe it will be cheaper than the attorney fees.

[Ray1936]

Um....Who was the attorney who wrote up the legal trust for your Mom back when? He/she would be the one to retain for your problem if you go that route.