O. JAMES KRAUSE, EILENE L. KRAUSE, HIS WIFE, AND DAVID W. BEANE, APPELLANTS,
v.
TITLE & TRUST COMPANY OF FLORIDA, A FLORIDA CORPORATION, APPELLEE
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Appellants sought to recover fees and costs incurred in establishing an access easement (way of necessity) after the title insurer refused to participate. The court held that the title insurance policy covered access shown by the record and did not require the insurer to fund litigation to establish the quality or practicability of that access.
The title insurance policy covered the appellants' access because access was shown by the record. The policy does not obligate the insurer to fund litigation concerning the physical quality or practicability of recorded access, as such conditions are not matters of record and fall outside the scope of title insurance coverage.
[1] A title insurance policy guarantees the accuracy of the title search and the quality of the title as shown by the record, but does not insure against infirmities not of r…
[2] A title insurance policy does not presume to insure against infirmities not of record, unless there is a specific undertaking to that effect.
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Join FLexlaw to unlock all legal intelligence“A title insurance policy contemplates a search of the chain of title, an opinion by an expert of what the search reveals and a guaranty that the search was accurate and that it expresses the quality of the title shown by the record.”
Establishes the scope and nature of title insurance coverage—limited to matters of record.
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Join FLexlaw to unlock all legal intelligenceAppellants owned property insured by Title & Trust Company of Florida. In an earlier suit, they established legal access to their property, but the co…
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FRANK D. UPCHURCH, Jr., Judge.
Appellants, O. James Krause, Eilene L. Krause, his wife, and David W. Beane, appeal from a judgment which denied their recovery of fees and costs incurred in an earlier suit to establish an access easement (way of necessity).1 Appellee Title & Trust Company of Florida had insured the title to the lands involved, but refused to partici pate in the suit to establish the easement.2 Appellants then sued to recover their expenses.
The controlling question is whether appellants had access to their property under the terms of the title insurance policy. We hold that they did and affirm.
A title insurance policy contemplates a search of the chain of title, an opinion by an expert of what the search reveals and a guaranty that the search was accurate and that it expresses the quality of the title shown by the record. 1 Fla.Jur.2d Abstracts § 38 (1977). Absent a specific undertaking to that effect, it does not presume to insure against infirmities not of record. See McDaniel v. Lawyers’ Title Guaranty Fund, 327 So. 2d 852 (Fla. 2d DCA 1976). See also § 624.608, Fla.Stat. (1979).
In the present case, the same judge had tried the earlier access suit. He states that all parties had agreed that there was “legal” access and that the only question was whether such access was “reasonable and practicable” for purposes of establishing an implied grant of necessity. The quality of a particular access (the subject matter of the original suit) would have been discoverable only upon a physical examination of the property or a detailed survey. The policy here specifically excepted any facts revealed by an accurate survey. The physical condition of the existing access was easily ascertainable by a simple inspection of the site by the purchasers. As the title company insured the quality of the title as shown by the record and there was access of record, it was not required to aid in the suit by appellants Krause and Beane to establish a grant of necessity.
AFFIRMED.
ORFINGER and COBB, JJ., concur. . § 704.01(1), Fla.Stat. (1979).
. The court in this earlier suit found that appellants had “legal” access to their land, but it was not passable by ordinary passenger vehicles without a substantial amount of clay or rock fill. § 704.03, Fla.Stat. (1979).
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- McDANIEL v. Lawyers' Title Guar. Fund, 327 So. 2d 852 (Fla. 2d DCA 1976)