Philadelphia Real Estate Attorney Fredrick Masters Discusses Reactions of the Title Industry as a Result of the Current Commercial Real Estate Market

An article written by Fredrick H. Masters — a shareholder in the Real Estate Section of Buchanan Ingersoll & Rooney's Philadelphia office — was published in the April 2010 edition of the Mann Report.

In the article, titled "The Title Industry Reacts To Distress In The Commercial Real Estate Market," Masters discussed the current state of the commercial real estate market, which he describes as in "distress" and littered with "[h]igh vacancies in office, retail, and industrial leases; falling rents; lack of permanent financing for maturing construction or other loans; falling values requiring equity infusions to bring down debt to equity ratios to close short-term extensions; cessation of practically all new development; mechanic's liens; short sales; foreclosures; deeds in lieu of foreclosure; and bankruptcies."

As a result of such conditions, Masters explained that "two of the title industry's largest companies [are] no longer issuing endorsements to owner's and mortgagee's policies of title insurance, which insure against creditor's rights claims in Pennsylvania, New Jersey, Delaware and Oregon. While such coverage was not available in all states (most notably New York and Texas), coverage through the issuance of American Land Title Association ("ALTA") endorsement 21/21-06 was available in many jurisdictions. Additionally, ALTA has voted to withdraw and decertify Endorsement 21/21-06 as an official ALTA Form. Accordingly, the industry trend is to cease issuing this protection and is predicted to be the case nation wide by the end of the year."

He went on to explain that "'creditor's rights' coverage insures against a challenge to the insured deed or mortgage based on a fraudulent transfer or conveyance pursuant to federal Bankruptcy Code Section 548, or applicable state law, or the preferential transfer provisions of the federal Bankruptcy Code Section 547."

For the remainder of his article, Masters explained fraudulent transfers under Section 548 and concluded stating, "[p]reviously, with the issuance of the appropriate title endorsement, the risk of the claim of a fraudulent transfer and the expenses of defending the same would fall on the title insurer. Now, purchasers and mortgagees must do significant financial due diligence and underwriting with respect to the seller/mortgagor, as well as to the value of the property and the consideration being given with respect to the same."