You’ve closed on your Florida property, unpacked the boxes, and started to settle in. The stress of home buying is finally behind you. Then, a letter arrives, or a neighbor makes an unexpected claim, revealing a problem with your property’s title—an issue you believed was resolved. The security you felt in your new home is suddenly shaken. At this point, a real estate lawyer can quickly explain next steps and help protect your interests.
A post-closing title defect is a serious issue that likely clouds your legal ownership of the property. This could be an unpaid lien from a prior owner, a boundary line that isn't where you thought it was, or even a fraudulent signature on an old deed.
The situation may feel daunting, but there is hope: established legal paths exist to resolve these issues and secure your ownership.
If you've discovered a title issue after closing, the first step is to understand your rights. Contact Lulich & Attorneys to schedule a consultation with our Board Certified in Real Estate Law team by calling (772) 589-5500.
Schedule a Consultation Today!
The Moment of Discovery: What Does This Notice or Claim Mean?
These issues commonly surface in a few ways. You might receive a certified letter from a creditor you've never heard of, claiming a lien against your new home for a debt left by a previous owner. It could be a notice from the county about a code violation that occurred long before you took ownership. Or it might be a tense conversation with a neighbor who insists your new fence is encroaching on their land.
These all represent potential challenges to your fundamental property rights. Each one suggests that someone else may have a legal claim to a part of, or all of, your property.
What Is a "Defective Title"?
A defective title is a legal way of saying that an unresolved issue from the property’s past could give another person or entity a claim against it. Think of it like buying a used car and later finding out a bank still holds an outstanding loan against it. The "cloud on title" is any document, claim, unreleased lien, or other encumbrance that might impair or invalidate your ownership. This cloud could prevent you from selling or refinancing the property until it is cleared.
Why Didn't the Title Search Catch This?
A title search is a detailed examination of public records, but even the most thorough searches can’t uncover every potential issue. Some defects are hidden deep within a property's history or are not properly recorded.
Common Title Defects That Appear After Closing in Florida
Unpaid Property Taxes or Liens
This is one of the most common surprises. A previous owner's unpaid property taxes, homeowners' association (HOA) dues, or bills from contractors can remain attached to the property itself. These debts become the responsibility of the new owner if not satisfied before closing.
Boundary and Easement Disputes
You might discover that your property's boundaries are not what the sales documents suggested. An incorrect survey or an unrecorded easement leads to serious conflicts. An easement grants another party the legal right to use a portion of your land for a specific purpose, such as a utility company needing access to power lines. If an easement exists but was not disclosed, it severely restricts your plans for the property.
Errors in Public Records
The county records office is the backbone of property ownership, but it's not infallible. Filing mistakes, inaccurate legal descriptions of the property, or even simple typos in names can create a "cloud" that raises questions about who holds true ownership.
Fraud, Forgery, and "Color of Title"
It is possible that a deed in your property's history was forged decades ago. This leads to a situation known as "Color of Title," a legal term for when a person has documents that appear to grant them ownership but are legally invalid. This can occur with fraudulent deeds or legal documents that were improperly executed, creating a break in the legitimate chain of ownership. In scenarios like these, title insurance helps protect against property fraud by providing a defense and pursuing curative actions for covered defects discovered after closing.
Unresolved Probate and Heirship Issues
Florida's significant senior population and the frequency of inherited properties mean that sometimes, a home is sold without all the legal heirs giving their consent. An heir who was overlooked during the probate process may surface years later with a valid claim to an interest in your property.
Your First Line of Defense: Making a Claim on Your Title Insurance Policy
When a title defect is discovered, your first and most important protection is typically your owner's title insurance policy, which is designed specifically for these situations.
What Is Title Insurance, Really?
Unlike homeowners or auto insurance that protects against future events, title insurance protects you from financial loss due to events that happened in the past. It is a one-time premium paid at closing that defends your ownership rights against defects that existed before you bought the property. The policy is a promise from the insurer to defend your title in court if a covered defect arises and to cover the financial loss if the claim is valid.
The Two Types of Policies (and Why It Matters)
It is important to know which policy you have, as it determines who is protected.
- Lender's Policy: This policy is almost always required by your mortgage lender. It protects only the lender's financial interest in the property for the amount of the loan. It does not protect your equity or your right to occupy the home.
- Owner's Policy: This is the policy that protects you. It covers your investment, your equity, and your right of possession against covered title defects. While technically optional in some transactions, proceeding without an owner's policy leaves a homeowner completely exposed to the costs and stress of resolving title problems.
How to Initiate a Claim
If you discover an issue, take prompt and proper action to leverage your policy's protection.
- Step 1: Immediate Notification: The moment you become aware of a potential title defect, you must notify your title insurance company in writing. Your closing documents should contain your policy information and the correct contact details for the insurer. Delay will jeopardize your coverage.
- Step 2: Provide Documentation: The insurer will need evidence to begin its investigation. Gather all relevant paperwork, including the notice or letter you received, your deed, your title policy, and any other correspondence related to the claim.
- Step 3: The Insurer's Investigation: The insurance company has a duty to investigate the claim. They will assign a claims officer, review the public records, and analyze the nature of the defect to determine if it falls under the scope of your policy coverage.
What if the Title Insurer Denies the Claim?
Title insurance policies have exclusions. They typically do not cover issues that were created after you purchased the property, problems you were aware of before closing, or certain types of disputes like zoning violations. If your claim is denied, it is not necessarily the final word. A denial is the point where having a Board Certified Real Estate Attorney becomes indispensable. An attorney analyzes the denial, challenges the insurer's decision, and takes legal action to enforce your rights under the policy.
How a Board Certified Real Estate Attorney Clears a Defective Title
The goal is to lift the heavy burden from your shoulders. A knowledgeable attorney will handle communications with the insurer, lien holders, and other claimants. Whether negotiating a resolution or preparing for litigation, their role is to manage the legal system on your behalf.
The Quiet Title Action: Formally Establishing Your Ownership
A "Quiet Title Action" is a specialized lawsuit filed to "quiet" any competing claims against your property. The objective is to obtain a court judgment that officially declares you as the sole, undisputed legal owner, effectively wiping the cloud from your title. The process generally involves:
- Investigation: An attorney will conduct an independent, in-depth investigation into the property's history, often going deeper than a standard title search.
- Filing the Lawsuit: A formal complaint is filed with the circuit court, identifying all parties who may have a potential claim to the property.
- Serving Notice: Every potential claimant, including unknown or missing heirs, must be formally and legally notified of the lawsuit.
- Litigation or Settlement: The attorney will either negotiate a settlement with the claimants or present your case before a judge to obtain a final judgment.
In Florida, the Marketable Record Title Act (MRTA) can extinguish certain old claims and defects that are more than 30 years old, simplifying the process of clearing the title.
Negotiating with Lien Holders and Other Claimants
Sometimes, court action is not the most efficient path. A skilled attorney may be able to negotiate with a creditor to release a lien for a fraction of the amount originally claimed. In cases involving heirship claims, a settlement that satisfies the claimant may be reached while securing your ownership at a reasonable cost.
Correcting Errors in the Public Record
For issues stemming from clerical errors, the solution may not require a full lawsuit. An attorney can file a "corrective deed" or petition the court to order the county clerk to fix the public record. These actions are governed by Florida law, specifically statutes like Section 695.01, Florida Statutes, which outlines the requirements for legally recording instruments affecting real property.
Secure Your Title, Secure Your Home
The path to a clear title is a legal one, requiring specific knowledge of Florida real estate law, title insurance policies, and court procedures. This is a solvable problem, but it is not one you should face alone. You need professional guidance.
Let our Board Certified Real Estate Attorneys at Lulich & Attorneys handle the legal hurdles so you can focus on your life. Call us today at (772) 589-5500 or contact us through our website to schedule your consultation and take the first step toward a clear title.
Schedule a Consultation Today!
Frequently Asked Questions About Post-Closing Title Defects
How long do I have to file a title insurance claim in Florida?
There isn't a rigid statute of limitations that begins on your closing date. Generally, the clock starts running when you discover or reasonably should have discovered the defect. However, your policy requires you to notify the insurer promptly. Waiting too long after discovery could give the insurer grounds to deny your claim for failing to comply with the policy's terms.
Can I sue the seller for not disclosing a title issue?
It is possible, but it presents a high bar. To successfully sue a seller for non-disclosure in Florida, you typically must prove that the seller had actual knowledge of the defect and intentionally concealed it. Most standard real estate contracts include an "as is" clause, which limits the seller's liability and puts the burden on the buyer's due diligence and title insurance.
What will this cost me? Will my title insurance cover my attorney's fees?
If the title insurance company accepts your claim, it is obligated to cover the costs of defending your title, which includes attorney's fees. If the insurer denies your claim and you must sue to enforce the policy, you may be able to recover your legal fees if you prevail in court. During your consultation, we will discuss the specifics of your case and the potential costs involved.
How long does it take to resolve a title defect?
The timeline varies dramatically based on the complexity of the issue. A simple clerical error might be resolved in a matter of weeks by filing a corrective instrument. However, a contested Quiet Title Action that involves tracking down missing heirs or litigating claims of fraud could take many months, or in some cases, more than a year to fully resolve through the court system.
My problem is with a neighbor over the property line. Is that a title issue?
Yes, a boundary dispute is a direct challenge to the extent of your legal ownership and is considered a title issue. Your owner's title insurance policy may provide coverage, particularly if the dispute arises from an error in the property's legal description or a faulty survey that was relied upon during the purchase.