Northwest Real Estate Law Blog : Northwest Real Estate Lawyer & Attorney : Davis Wright Tremaine Law Firm : Land Use, Development, Commercial Property : Seattle, Portland, Alaska, Washington, Oregon

Authored by:  Alan Middleton

The buyer of a residence has an absolute right to rescind prior to closing if the seller fails to provide the disclosure statement mandated by RCW 64.06.020. That is the holding in Almanza v. Bowen, a recent Division I case. There, a buyer rescinded because the buyer's prior home had not sold. It was undisputed that the seller had not provided a disclosure statement. The Court rejected the seller's argument that the buyer could not rescind because the rescission had nothing to do with the condition of the residence and the failure to provide the disclosure statement. Although the statute does permit a buyer to waive the right to a disclosure statement, the Court held on the facts presented that no waiver occurred. The case can be found here.

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Authored by:  Alan Middleton

A recent decision by Division II of the Washington Court of Appeals underscores the need for all potential lien claimants to check their forms and comply with the lien statute, or risk losing their lien rights. A copy of the case, Williams v. Athletic Field, Inc., can be found here: Download file

Link to full post:  here

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Authored by Clayton P. Graham and James A. Greenfield

In a development of great interest to owners of property in or near floodplains, many local jurisdictions in Washington state will soon begin updating their floodplain development regulations to comply with new federal requirements. As discussed in a post on Davis Wright Tremaine’s Real Estate Blog, the Federal Emergency Management Agency (FEMA) began developing its model ordinance after the National Marine Fisheries Service (NMFS) found that FEMA’s administration of the National Flood Insurance Program (NFIP) threatened the habitat of a number of species protected under the Endangered Species Act.

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Authored by: Monique Lee Hawthorne

As published in The Daily Journal of Commerce

As a Leadership in Energy and Environmental Design Accredited Professional, I readily defend LEED’s standard and certification to critics who question its alleged greenness and whether it lives up to its hype. “You get points for including bike parking spaces?” they protest. “C’mon!” Nonetheless, I stand by the usefulness of LEED certification and believe it serves a useful purpose even if it only increases dialogue and awareness about sustainable building.

With that said, recent conversations have led me to explore other types of sustainable building standards and methods. I have been very impressed with Passive House (aka Passivhaus), a building standard from Germany that is an exciting option for builders, homeowners and developers. (read full DJC article)

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Authored by:  Craig Gannett and Clayton P. Graham

Landowners and developers across Western Washington will be affected by floodplain map revisions that the Federal Emergency Management Agency (FEMA) plans to carry out in the coming months. These map updates are part of FEMA’s administration of the National Flood Insurance Program (NFIP), and changes in map designations can have far-reaching effects, including increases in flood insurance premiums and new floodplain development regulations under local codes. For these reasons, many landowners and local governments across Western Washington are expected to appeal these map revisions.

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Authored by:  Alan Middleton

The International Code Council on Monday will release the International Green Construction Code, Public Version 1.0 (IGCC).  The IGCC incorporates ANSI/ASHRAE/USGBC/IES Standard 189.1, Standard for the Design of High Performance, Green Buildings Except Low-Rise Residential Buildings, as an alternate path of compliance. The IGCC is intended as an overlay to complement existing codes.  More information is available at www.iccsafe.org.  Release of the IGCC will likely accelerate adoption of relatively uniform green building codes nationwide.  DWT will be tracking developments in local jurisdictions.

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Authored by:  Elisabeth Woare

The creditors’ rights endorsement, an endorsement to a lender or owner’s title policy which provides coverage against challenges to a transfer of title as a result of a fraudulent conveyance, fraudulent transfer or preferential transfer, appears to have been essentially eliminated by the title insurance industry earlier this month. Citing the current economic climate, several recent bankruptcy court decisions and recent questioning by state regulators as to whether the coverage is within the “purview” of title insurance, Fidelity National Title Group of Underwriters (which includes Chicago Title, Fidelity National Title, Ticor Title, Lawyers Title, Commonwealth Land Title, Security Union Title and Alamo Title) and First American Title Insurance Company have announced that they will no longer issue the endorsement.  The American Land Title Association (ALTA) has also recently voted to officially de-certify the creditor’s rights endorsement (ALTA Form 21/21-06), effective March 8, 2010. According to the ALTA website, this de-certification of the ALTA form of creditor’s rights endorsement does not affect the ability of title insurers to separately decide what coverage or endorsement, if any, it is willing to provide, it just means that the insurers can no longer use the ALTA form after March 8. 

Prior to the past 18 months, creditors’ rights coverage was fairly common and easy to obtain. Recently, title insurers have been more and more reluctant to provide the coverage, and when they have agreed to provide it, it has come with additional risks and cost in the form of required indemnity agreements protecting the insurer and increased title premiums. Not all title insurers are eliminating the creditors’ rights endorsement out right. Old Republic National Title Insurance Company and Stewart Title Guaranty Company have indicated that they may still issue the endorsement upon review of the seller or mortgagor financials. 

Given the new insurer policies, real estate purchasers and lenders should be aware that they are likely going to have to bear some insolvency risks that were once covered by title insurance policies.

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