Third District Denies Title Insurance Claim

Village Carver Phase I, LLC v. Fidelity Nat’l Title Ins. Co, 3D12-166 (Fla. 3d DCA 2013):

Village Carver sought recovery under an owner’s policy of title insurance for losses associated with the demolition and redesign of a portion of an affordable housing project on which was unearthed an abandoned cemetery and human remains during the course of construction. Village Carver argued the title policy afforded it coverage for the losses because Fidelity failed to except from coverage under the policy the statutory easement for ingress and egress provided to relatives and descendants of any person buried in a cemetery for the purpose of visiting the cemetery under §704.08. The Third District disagreed.

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A seller has an implied obligation to convey a good and marketable title in an agreement for the sale of real property unless there is a provision stating otherwise. A good and marketable title is one that is free from encumbrances. An encumbrance is any right or interest in land held by someone other than the owner that may exist. Encumbrances decrease the value of the owner’s title. Marketable title is also reasonably certain not to be called into question in the future so as to subject the purchaser to the hazard of litigation as to questions of fact or law to sustain its validity.

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