Archive for July, 2010

By: Bob Ballinger, Real Estate Attorney and Director of Operations, Kings River Title

In Arkansas neighboring property owners can legally modify the boundaries dividing their properties without any written instrument. This can be done a variety of ways, one of which is by a principal in the law called “boundary by acquiescence.” A boundary line by acquiescence can be inferred from the neighbor’s conduct over many years so as to imply the existence of an agreement about the location of the boundary line. Whenever adjoining landowners tacitly accept a fence line or other monument as the visible evidence of their dividing line and thus apparently consent to that line, it becomes the boundary by acquiescence. Walker v. Walker,8 Ark. App. 297, 651 S.W.2d 116 (1983). Even if there never was an express agreement to treat a fence as the dividing line between the two parcels of land, such an agreement may be inferred by the action of the parties. See Kittler v. Phillips, 246 Ark. 233, 437 S.W.2d 455 (1969). Whether a boundary line by acquiescence exists is to be determined upon the evidence in each individual case. See Hedger Bros. Cement & Materials, Inc. v. Stump, 69 Ark. App. 219, 10 S.W.3d 926 (2000).

Further, boundaries by acquiescence are frequently found to exist at locations other than those shown by an accurate survey of the premises. See Summers v. Dietsch, 41 Ark. App. 52, 849 S.W.2d 3 (1993). A fence, by acquiescence, may become the accepted boundary even though contrary to said survey line. Id. Thus, tacit acceptance of a fence line or other monument as the visible evidence of the dividing line for a long period of time manifests apparent consent. Id. The property owners and their grantees are then precluded from claiming that the boundary line thus recognized and acquiesced in is not the true one, although it may not be on the survey line. Id.

Therefore, if you have an old fence separating your property from your neighbor’s, you can be somewhat confidant that the boundary to your property is along that line.

by: Robert A. Ballinger, Attorney at Law, Director of Operations, Kings River Title and Abstract

If you have recently purchased or refinanced a home, chances are you have had to get title insurance. What exactly does title insurance cover, and who does it protect, the homeowner or the lender? Do you need title insurance on a refinance if you bought title insurance when you purchased your home? These are important questions we receive on a daily basis and here are some answers, as well as helpful advice on title insurance, and whether or not you need it.

Basically, title insurance protects you against problems affecting the title to real property. There are two types of title insurance—a Loan Policy, and an Owner’s Policy. A Loan Policy protects the lender for the amount of the loan, while the Owner’s Policy protects you, the homeowner, for your investment in the property, your equity. In both cases, the title process covers an exhaustive search of public records to make certain the title to the subject property is clear, and covers against future loss if a claim against the property is made.

While discovering an issue with your title can seem rather remote, one out of every four title searches reveals a problem with the title. Examples include tax liens, forged signatures in the chain of title, recording errors, title search errors, undisclosed easements and title claims by missing heirs and/or ex-spouses. These problems should be uncovered in a title search before you even close on your home.

Even after an exhaustive title search is performed and a title policy issued, sometimes a problem may surface that can threaten your home. If you only have a lender’s policy, where the outstanding loan is covered, your equity is not protected. A separate Owner’s Policy would protect you for as long as you or your heirs have an interest in the property.

With the recent refinance boom that has occurred over the last few years, some homeowners have questioned whether or not they need a new title policy when they refinance. The answer is, you won’t need a new Owner’s Policy, but a lender will require a new Loan Policy because a title search must be performed covering the time since the last policy was issued.

Although somewhat remote, there is the chance that unforeseen problems might exist such as a mechanic’s lien from a contractor who claims he/she has not been paid, or a judgment placed on your house for unpaid taxes. The lender will understandably want to make sure the title to the property they are financing is clear.

In some states, the seller actually pays for Owner’s coverage. Be sure to ask about an Owner’s Policy at the time you obtain a Loan Policy.

Remember, title insurance protects you against the potential loss of your most valuable asset—your home.