What Is a Title Defect?
A title defect is a flaw in the chain of ownership that makes the property's title legally unmarketable. Also known as a cloud on title, a defect means that a third party may have a legal claim to the property or that previous transfers of the property were improperly executed. Title defects must be cured before a real estate transaction can close.
Common Title Defects in Florida
During the title search process, examiners commonly uncover the following defects:
- Unreleased liens — A previous mortgage, construction lien, or judgment lien that was paid off but never formally released in the county records.
- Boundary disputes — Encroachments where a structure overlaps the property line, or conflicting surveys.
- Probate issues — A previous owner died and their estate was never properly probated, leaving missing heirs with potential claims to the property.
- Fraud or forgery — A forged deed in the chain of title.
- Clerical errors — Mistakes in the public records, such as an incorrect legal description or misspelled names on a previous deed.
- Unpaid taxes — Delinquent property taxes resulting in tax certificates or tax deeds.
Curing Title Defects
Under the standard Florida FAR/BAR contract, the seller has a specific cure period (typically 30 days) to resolve any title defects discovered by the buyer's title company. Common methods for curing defects include:
- Recording a satisfaction of mortgage or release of lien.
- Obtaining a quitclaim deed from a missing heir or a party with a potential interest.
- Filing a quiet title action in circuit court to have a judge formally extinguish invalid claims.
- Executing a corrective deed to fix clerical errors.
If a defect was missed during a previous sale, the current owner's title insurance policy may cover the legal costs to cure the defect.
Related Terms
- Cloud on Title — Another term for a title defect
- Title Insurance — Protects against undiscovered defects
- Quiet Title Action — The ultimate legal remedy for curing defects
- Marketable Title — Title that is free of significant defects
Barnes Walker Title Services
Barnes Walker's title company and real estate attorneys specialize in identifying, analyzing, and curing complex title defects to ensure safe and timely closings. Submit a title inquiry for assistance.
Florida Law Reference
Fla. Stat. Ch. 712
The Marketable Record Title Act simplifies title searches by extinguishing most claims and defects that predate the root of title by 30 years.
Reviewed by the attorneys at Barnes Walker, Goethe, Shea & Robinson, PLLC