Articles

Due Diligence Considerations When Purchasing Outside a Municipality in Montana

By Art Macomber

The typical buyer of a residential parcel located in a municipality does not run into significant due diligence challenges when purchasing real estate. Parcels located within a municipality with one- to four-unit zoning and created by a platted subdivision require significantly less due diligence because typically: 1) easements are referenced, 2) road access is required, 3) zoning is well-defined, and 4) water, sewer, and power are provided. Outside of a municipality, many circumstances can impede the…

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Seller Disclosures in Montana

By Art Macomber

Montana law does not provide many protections when it comes to seller disclosures. Sellers may complete a property disclosure form, but Montana does not require it. Montana law requires a seller’s agent to disclose all relevant and material information concerning conditions not known or discoverable by the seller. A seller’s agent is not required to verify statements made by the seller or to inspect the property. A seller’s agent must disclose any adverse material facts…

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Considerations on “Buyer Beware” in Montana

By Art Macomber

As in other states that are considered “black-letter law” states, Montana real estate contracts are subject to well-established technical legal rules that are no longer subject to reasonable dispute. Montana courts assume as a matter of law that you have performed physical and legal due diligence, are familiar with contract provisions and understand their effect on your transaction, and are generally aware of risks associated with the parcel. Further, as a general matter, Montana courts…

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What is “Notice?”

By Art Macomber

What is meant by the word “Notice?” In most legal jurisdictions in the United States, there are three types: Actual, Inquiry, and Constructive. Actual. Actual notice is based in sensory experience. If you saw, smelled, heard, felt, or tasted it, you are said to have had actual notice. For example, if you see a road, you have actual notice that the road exists. Inquiry. Inquiry notice is the sensory experience that causes a reasonable person…

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General Considerations When Buying Real Estate in Montana

By Art Macomber

This article is the first in a series of articles about buying and selling real estate in Montana. These considerations are not legal in nature, but are general recommendations based on over twenty years of real estate experience both as a Realtor® and as a real property attorney in the Inland Northwest. Because buyers and sellers, wherever they live, generally buy or sell real estate less than four times in their lifetime, and a real…

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Exclusions & Exceptions to Title Insurance

By Greg George

Why are Exclusions and Exceptions to Title Insurance so important? The standard title insurance form used in whole or part by industry participants is the 2006 Owner’s Policy of Title Insurance produced by the American Land Title Association. The standard ALTA insurance form starts with the following language: “American Land Title Association Owner’s Policy Adopted 6-17-06 COVERED RISKS  SUBJECT TO THE EXCLUSIONS FROM COVERAGE, THE EXCEPTIONS FROM COVERAGE CONTAINED IN SCHEDULE B (bold italics added) AND THE CONDITIONS,…

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Special Exceptions to Title Insurance

By Greg George

Title insurance insures against risks incurred to title when you buy land. However, when you read through a title insurance policy, you’ll find that certain risks are not covered. These uncovered risks to title are colloquially called “special exceptions.” Background The American Land Title Association (ALTA) is the national trade association for the title insurance industry. Founded in 1907, the Association has developed a set of forms, the ALTA title insurance forms, used voluntarily by title insurers across the…

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What is a Title Search?

By Greg George

What is a Title Search? What is a title search? A title search is a report of the public documents record, typically performed by a title company, regarding a specific parcel of land. The search involves documents located in the Recorder’s Office of the county the property is located in. These documents may include: Mortgages Deeds Rights of way Covenants Judgments affecting the title to, or the use of, the property The results of the…

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Title Insurance Basics

By Greg George

Introduction Title insurance insures risks associated with the transfer of real property. Imagine buying a home only to learn that somehow you don’t own the property. This occurrence can happen and, although unlikely, does happen . . . sometimes. Title insurance covers specific risks to title, ultimately making market-clearing values more predictable and stable. The standard title insurance form used in whole or part by industry participants is the 2006 Owner’s Policy of Title Insurance produced by the American…

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Chain of Title

By Greg George

Introduction “Chain of title” is the ownership history of a parcel of real property, from the first owner to the present owner. Black’s Law Dictionary, 10th Ed. p. 278 (2014). The chain of title for a parcel of land should go without interruption from the present day back to the original United States government land patent.[1] Why is chain of title important? The reason is that for a current owner of real property to have…

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