TAX CREDIT PROJECTS AND TITLE INSURANCE Todd C. BrockmannEd Urban The Brockmann Law Firm, PCUrban Title Company (704) (704)

WHAT IS TITLE INSURANCE? A product in the form of a policy that insures title to real property against defects, liens, encumbrances and other matters affecting the title, subject to certain general exclusions, conditions and specific exceptions. It is not designed to insure against known risks – only unknown risks.

WHY DO YOU NEED IT? Protects the insured interest in the real property Facilitates its marketability Fulfills investor, lender and governmental requirements

FALL 2012: PURCHASE CONTRACT Upon signing a purchase contract for a property, the conditions in the contract will dictate the timing of the title insurance process. Typically, there is a due diligence deadline for the purchaser to object to any problems with the property including title issues. It is very important to get the title searched and a commitment issued early in the process to flush out any potential problems. Same as standard real estate transactions.

HOW DOES TITLE GET SEARCHED? Prior policy/tacking Abstracting process Title opinion Title commitment

TITLE COMMITMENT COMPONENTS Schedule A Schedule B-I Schedule B-II Endorsements Cover

WHAT ARE THE ISSUES? 10 Year Rule for Rehab Projects under Section 42(d)(2)(B)(ii): At least 10 years between the date of its acquisition and the date the building was last placed in service Prepare a separate chain of title Identify any potential ownership changes If owner was a tax partnership, verify no partnership changes Affidavit from seller Examples of problems

WHAT ARE THE ISSUES? Reverters or Restrictions in Deeds: Carefully review each deed in the title for any extraordinary restrictions If tacking, pull prior deeds to confirm Evaluate if restrictions will impact project development Examples

WHAT ARE THE ISSUES? Easements that restrict where or what you can build: Located in deeds and separate easement documents Access – specifically defined or general in nature Utilities – specifically defined or general in nature Survey may be necessary for answers Affirmative title insurance coverage

WHAT ARE THE ISSUES? Seller on the Contract: Does the name of the seller match? Valid reasons of lack of a match Invalid reasons for lack of a match

SPRING 2013 TAX CREDIT APPLICATION Real Estate Requirements of QAP/Application Site Control: Evidenced by option, deed or contract Utilities: Direct or by easement Access: Direct or by easement Zoning: Endorsement will be required Neighborhood Characteristics: Must know exact location to determine point scores Rehab: Need to satisfy 10 year rule

SUMMER 2013 TAKE A VACATION

FALL 2013: YOU HAVE A RESERVATION OF CREDITS. NOW WHAT? Acquisition is no different than any real estate acquisition Title commitment revised/finalized for acquisition North Carolina closing process Title policy for acquisition price

TITLE POLICY COMPONENTS Schedule A Schedule B-Part I Schedule B-Part II Endorsements Jacket

SPRING 2014: CLOSING OF CONSTRUCTION LOAN AND EQUITY Title commitments Equity: Amount of development budget Construction Loan: Amount of loan State Tax Credit Loan: Amount of loan Other secondary financing Proforma Policies

SPRING 2014: CLOSING OF CONSTRUCTION LOAN AND EQUITY Owners vs. loan policy endorsements: Owners only Loan only Both Coverage given more liberally to loan policies

SPRING 2014: CLOSING OF CONSTRUCTION LOAN AND EQUITY Special endorsements and requirements: If available, they want it Common examples: Zoning Survey Access Environmental Lien Comprehensive

SPRING 2014: CLOSING OF CONSTRUCTION LOAN AND EQUITY Non-imputation Endorsement and Affidavit: Provides investor with coverage for issues know to developer Developer must provide affidavit and indemnity to title insurance company A financial statement of one or several indemnitors might be required

SPRING 2014: CLOSING OF CONSTRUCTION LOAN AND EQUITY Issuance of Title Policies: Closing: Update and record Final title opinion Payment of insurance premium Provide signed affidavits Investor/Lender Instruction Letters

SPRING 2014: CLOSING OF CONSTRUCTION LOAN AND EQUITY What are these NCLTA lien affidavits? Substantial number of recent lien claims Seller Form 1 Seller Form 2 Buyer Form 3

SPRING 2014: CLOSING OF CONSTRUCTION LOAN AND EQUITY Simultaneous issuance of policies Streamline process Save premium costs

SUMMER 2014 TAKE ANOTHER VACATION

CONSTRUCTION PERIOD Update/Date Down Process: What is really necessary? Equity requirements Lender requirements Construction draws Future Advance Deed of Trust In-state vs. out-of-state lenders

CONSTRUCTION PERIOD Abstracting and title opinion update Endorsement to policies Mechanics liens issues Non-imputation issues

2015: COMPLETION AND PERM LOAN CLOSING Lien Free completion As-built survey Interplay between multiple loans Subordination agreements New commitment and policy for perm loan Date downs of existing/continuing policies

TAKE ANOTHER VACATION

TAX CREDIT PROJECTS AND TITLE INSURANCE Todd C. BrockmannEd Urban The Brockmann Law Firm, PCUrban Title Company (704) (704)