What is a title defect?
• When conducting a Title Search, finding encumbrances of the owners rights under the Title is particularly important. Such an encumbrance is referred to as a Title Defect. A Title Defect may cause the owner of real property to lose all or part of the land to a superior ownership interest or another claim.
It is any one of a number of things that could jeopardize your interest. It could be an unsatisfied mortgage, lien, judgment or other recorded claim against the property. A defect could also take the form of a claim by a third party such as an unknown heir or prior owner whose title was transferred by forgery or fraud.
In a real estate transaction the seller is expected to convey “clear title” to the property, or “title free of defects” to the seller. Sometimes a title defect is referred to as a “cloud” on the title. A defect in the title to real property can delay or even prevent a sale from taking place. Sometimes it becomes necessary for the owner to prosecute what is called a “Quiet Title” action – a form of lawsuit asking the court for an order removing the defect in the title. There are several types of title defects. Easements can be title defects. An easement is the right to go across or do something on someone else’s property. It can be acquired either by written conveyance (which may be recorded) or by operation of law, depending on events which may have occurred long before you ever even heard of the property. Easements acquired by operation of law are usually not recorded until someone has successfully sued the property owner to enforce one. All liens are regarded as title defects. If a l
