Owner's Title Insurance Policy
(American Land Title Association Owner's Policy - 10-17-9~) IWith Florida Modifications)
. OWNER'S TITLE INSURANCE POllCY
Attorneys' Title Insurance Fund, Inc.
ORLANDO, FLORIDA
SUBJECT TO THE EXCLUSIONS FROM COVERAGE, THE EXCEPTIONS FROM
COVERAGE CONTAINED IN SCHEDULE BAND THE CONDITIONS AND STIPU-
LATIONS, ATIORNEYS' TITLE INSURANCE FUND, INC., a Florida corporation,
herein called Tne Fund, insures, as of Date of Policy shown in Schedule A, against loss
or damage, not exceeding the Amount ofInsurance stated in Schedule A, sustained
or incurred by the insured by reason of:
1. Title to the estate or interest described in Schedule A being vested other
than as stated therein;
2. Any defect in or lien or encumbrance on the title;
3. Unmarketability of the title;
4. Lack of a right of access to and from the land.
The Fund will also pay the costs, attorneys' fees and expenses incurred in defense of
the title, as insured, but only to the extent provided in the Conditions and Stipula-
tions. .
In Witness Whereof, ATIORNEYS' TITLE INSURANCE FUND, INC. has caused this
policy to be signed and sealed as of Date of Policy shown in Schedule A, the policy to
become valid when countersigned by an authorized signatory.
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Attorneys' Title Insurance Fund, Inc.
By
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Charles J. Kovaleski
President
SERIAL
OPM-
2631820
FUND FORM OPM (rev. 3/98)
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EXCLUSIONS FROM COVERAGE
.
The following matters are expressly excluded from the coverage of this policy and The Fund will not pay loss or damage, costs, attorneys'
fees or expenses which arise by reason of:
1. (a) Any law, ordinance or governmental regulation (including but not limited to building and zoning laws, ordinances, or regulations)
restricting, regulating, prohibiting or relating to (i) the occupancy, use, or enjoyment of the land; (ii) the character, dimensions or location
of any improvement now or hereafter erected on the land; (iii) a separation in ownership or a change in the dimensions or area ofthe land
or any parcel of which the land is or was a part; or (iv) environmental protection, or the effect of any violation of these laws, ordinances or
governmental regulations, except to the extent that a notice of the enforcement thereof or a notice of a defect, lien or encumbrance resulting
from a violation or alleged violation affecting the land has been recorded in the public records at Date of Policy.
(b) Any governmental police power not excluded by (a) above, except to the extent that a notice of the exercise thereof or a notice of a
defect, lien or encumbrance resulting from a violation or alleged violation affecting the land has been recorded in the public records at Date
of Policy.
2. Rights of eminent domain unless notice of the exercise thereof has been recorded in the public records at Date of Policy, but not excluding
from coverage any taking which has occurred prior to Date of Policy which would be binding on the rights of a purchaser for value without
knowledge.
3. Defects, liens, encumbrances, adverse claims or other matters:
(a) created, suffered, assumed or agreed to by the insured claimant;
(b) not known to The Fund, not recorded in the public records at Date of Policy, but known to the insured claimant and not disclosed in
writing to The Fund by the insured claimant prior to the date the insured claimant became an insured under this policy;
(c) resulting in no loss or damage to the insured claimant;
(d) attaching or created subsequent to Date of Policy; or
(e) resulting in loss or damage which would not have been sustained if the insured claimant had paid value for the estate or interest insured
by this policy.
4. Any claim, which arises out of the transaction vesting in the insured the estate or interest insured by this policy, by reason of the operation
offederal bankruptcy, state insolvency, or similar creditors' rights laws, that is based on:
(a) the transaction creating the estate or interest insured by this policy being deemed a fraudulent conveyance or fraudulent transfer; or
(b) the transaction creating the estate or interest insured by this policy being deemed a preferential transfer except where the preferential
transfer results from the failure:
(i) to timely record the instrument of transfer; or
(ii) of such recordation to impart notice to a purchaser for value or ajudgment or lien creditor.
CONDfinONSANDSTIPULATIONS
1. Def"mition of Tenns
The following terms when used in this policy mean:
(a) "insured": the insured named in Schedule A, and, subject to any
rights or defenses The Fund would have had against the named insured,
those who succeed to the interest of the named insured by operation of
law as distinguished from purchase including, but not limited to, heirs,
distributees, devisees, survivors, personal representatives, next of kin,
or corporate or fiduciary successors
(b) "insured claimant": an insured claiming loss or damage.
(c) "knowledge" or "known": actual knowledge, not consuuctive
knowledge or notice which may be imputed to an insured by reason of
the public records as defined in this policy or any other records which
impart consuuctive notice of matters affecting the land.
(d) "land": the land described or referred to in Schedule A, and
improvements affixed thereto which by law constitute real property
The term "land" does not include any property beyond the lines of the
area described or referred to in Schedule A, or any right, title, interest,
estate or easement in abutting streets, roads, avenues, alleys, lanes, ways
or watenvays, but nothing herein shall modify or limit the extent to
which a right of access to and from the land is insured by this policy.
(e) "mortgage": mortgage, deed of trust, UUst deed, or other
security instrument
(f) "public records": records established under state statutes at
date of Policy for the purpose of imparting consuuctive notice of
matters relating to real property to purchasers for value and without
knowledge. With respect to Section l(a) (iv) of the Exclusions from
Coverage, "public records" shall also include environmental protection
liens filed in the records ofthe clerk ofthe United States district court
for the district in which the land is located.
(g) "unmarketability of the title": an alleged or apparent matter
affecting the title to the land, not excluded or excepted from coverage,
which would entitle a purchaser of the estate or interest described in
Schedule A to be released from the obligation to purchase by virtue of
a contractual condition requiring the delivery of marketable title.
2. Continuation of Insurance Mter Conveyance of Tide
The coverage of this policy shall continue in force as of Date of Policy
in favor of an insured only so long as the insured retains an estate or
interest in the land, or holds an indebtedness secured by a purchase
money mortgage given by a purchaser from the insured, or only so long
as the insured shall have liability by reason of covenants of warranty
made by the insured in any transfer or conveyance of the estate or
interest. This policy shall not continue in force in favor of any purchaser
from the insured of either (i) all estate or interest in the land, or (ii) all
indebtedness secured by a purchase money mortgage given to the
insured.
3. Notice of Claim To Be Given by Insured Claimant
The insured shall notify The Fund promptly in writing (i) in case of any
litigation as set forth in Section 4(a) below, (ii) in case knowledge shall
come to an insured hereunder of any claim of title or interest which is
adverse to the title to the estate or interest, as insured, and which might
cause loss or damage for which ~ Fund may beliable by virtue of this
policy, or (iii) if title to the estate OF interest, as insured, is rejected as
unmarketable. If prompt notice shall not be given to The Fund, then as
to the insured all liability of The Fund shall terminate with regard to the
matter or matters for which prompt notice is required; provided,
however, that failure to notify The Fund shall in no case prejudice the
rights of any insured under this policy unless The Fund shall be
prejudiced by the failure and then only to the extent of the prejudice.
4. Defense and Prosecution of Actions; Duty of Insured Claimant
To Cooperate
(a) Upon written request by the insured and subject to the options
contained in Section 6 of these Conditions and Stipulations, The Fund,
at its own cost and without unreasonable delay, shall provide for the
defense of an insured in litigation in which any third party asserts a
claim adverse to the title or interest as insured, but only as to those stated
causes of action alleging a defect, lien or encum brance or other matter
insured against by this policy. The Fund shall have the right to select
counsel of its choice (subject to the right of the insured to object for
reasonable cause) to represent the insured as to those stated causes of
action and shall not be liable for and will not pay the fees of any other
counsel. The Fund will not pay any fees, costs or expenses incurred by
the insured in the defense of those causes of action which allege matters
not insured against by this policy.
(b) The Fund shall have the right, at its own cost, to institute and
prosecute any action or proceeding or to do any other act which in its
opinion may be necessary or desirable to establish the title to the estate
or interest, as insured, or to prevent or reduce loss or damage to the
insured. The Fund may take any appropriate action under the terms of
this policy, whether or not it shall be liable hereunder, and shall not
thereby concede liability or waive any provision of this policy. If The
Fund shall exercise its rights under this paragraph, it shall do so
diligently.
(c) Whenever The Fund shall have brought an action or interposed
a defense as required or permitted by the provisions of this policy, The
by the insured claimant which were authorized by The Fund up to the
time of payment and which TQe Fund is obligated to pay; or
(ii) to payor otherwise Settle wi th the insured claiman t the loss
or damage provided for under this policy, together with any costs,
attorneys' fees and expenses incurred by the insured claimant which
were authorized by The Fund up to the time of payment and which The
Fund is obligated to pay.
Upon the exercise by The Fund of either of the options provided for in
paragraphs (b) (i) or (ii), The Fund's obligations to the insured under
this policy for the claimed loss or damage, other than the payments
required to be made, shall terminate, including any liability or obliga-
tion to defend, prosecut~ or continue any litigation.
7. Detennination, Extent of Liability and Coinsurance
This policy is a contract of indemnity against actual monetary loss or
damage sustained or incurred by the insured claimant who has suffered
loss or damage by reason of matters insured against by this policy and
only to the extent herein described. .
(a) The liability of The Fund under this policy shall not exceed the
least of:
(i) the Amount of Insurance stated in Schedule A; or,
(ii) the difference between the value of the insured estate or
interest as insured and the value ofthe insured estate or interest subject
to the defect, lien or encumbrance insured against by this policy.
(b) (ThisparagraPh dealingwith Coinsurance was removed from Florida
policies. )
(c) The Fund will pay only those costs, attorneys' fees and expenses
incurred in accordance with Section 4 of these Conditions and Stipu-
lations
8. Apportionment
If the land described in Schedule A consists of two or more parcels
which are not used as a single site, and a loss is established affecting one
or more of the parcels but not all, the loss shall be computed and settled
on a pro rata basis as if the amount of insurance under this policy was
divided pro rata as to the value on Date of Policy of each separate parcel
to the whole, exclusive of any improvements made subsequent to Date
of Policy, un~ess a liability or value has otherwise been agreed upon as
to each parcel by The Fund and the insured at the time of the issuance
of this policy and shown by an express statement or by an endorse men t
attached to this policy.
9. Limitation of Liability
(a) If The Fund establishes the title, or removes the alleged defect,
lien or encumbrance, or cures the lack of a right of access to or from the
land, or cures the claim of unmarketability of title, all as insured, in a
reasonably diligent manner by any method, including litigation and
the completion of any appeals therefrom, it shall have fully performed
its obligations with respect to that matter and shall not be liable for any
loss or damage caused thereby.
(b) In the event of any litigation, including Ii tigation by The Fund
or with The Fund's consent, The Fund shall have no liability for loss or
damage until there has been a final determination by a court of
competent jurisdiction, and disposition of all appeals therefrom, ad-
verse to the title as insured.
(c) The Fund shall not be liable for loss or damage to any insured
for liability voluntarily assumed by the insured in settling any claim or
suit without the prior written consent of The Fund.
10. Reduction of Insurance; Reduction or Termination of Liability
All payments under this policy, except payments made for costs,
attorneys' fees and expenses, shall reduce the amount of the insurance
pro tanto.
11. Liability Noncumulative
It is expressly understood that the amount of insurance under this
policy shall be reduced by any amount The Fund may pay under any
policy insuring a mortgage to which exception is taken in Schedule B
or to which the insured has agreed, assumed, or taken subject, or which
is hereafter executed by an insured and which is a charge or lien on the
estate or interest described or referred to in Schedule A, and the
amount so paid shall be deemed a payment under this policy to the
insured owner.
12. Payment of Loss
(a) No payment shall be made without producing this policy for
endorsement of the payment unless the policy has been lost or de-
stroyed, in which case proof ofloss or destruction shall.be furnished to
the satisfaction of The Fund.
(b) When liability and the extent of loss or damage has been
definitely fixed in accordance with these Conditions and Stipulations,
Fund may pursue any litigation to final determination by a court of
competent jurisdiction aqd expressly reserves the right, in its sole
discretion, to appeal from any adverse judgment or order.
(d) In all cases where this policy permits or requires The Fund to
prosecute or provide for the defense of any action or proceeding, the
insured shall secure to The Fund the right to so prosecute or provide
defense in the action or proceeding, and all appeals therein, and
permit The Fund to use, at its option, the name of the insured forthis
purpose. Whenever requested by The Fund, the insured, at The Fund's
expense, shall give The Fund all reasonable aid (i) in any action or
proceeding, securing evidence, obtaining witnesses, prosecuting or
defending the action or proceeding, or effecting settlement, and (ii)
in any other lawful act which in the opinion of The Fund may be
necessary or desirable to establish the title to the estate or interest as
insured. If The Fund is prejudiced by the failure of the insured to
furnish the required cooperation, The Fund's obligations to the
insured under the policy shall terminate, including any liability or
obligation to defend, prosecute, or continue any litigation, with regard
to the matter or matters requiring such cooperation.
5. Proof of Loss or Damage
In addition to and after the notices required under Section 3 of these
Conditions and Stipulations have been provided The Fund, a proof of
loss or damage signed and sworn to by the insured claimant shall be
furnished to The Fund within 90 days after the insured claimant shall
ascertain the facts giving rise to the loss or damage. The proof of loss
or damage shall describe the defect in, or lien or encumbrance on the
title, or other matterinsured against by this policy Which constitutes the
basis ofloss or damage and shall state, to the extent possible, the basis
of calculating the amount of the loss or damage. If The Fund is
prejudiced by the failure of the insured claimant to provide the
required proof of loss or damage, The Fund's obligations to the
insured under the policy shall terminate, including any liability or
obligation to defend, prosecute, or continue any litigation, with regard
to the matter or matters requiring such proof of loss or damage.
In addition, the insured claimant may reasonably be required to submit
to examination under oath by any authorized representative of The
Fund and shall produce for examination, inspection and copying, at
such reasonable times and places as may be designated by any autho-
rized representative of The Fund, all records, books, ledgers, checks,
correspondence and memoranda, whether bearing a date before or
after Date of policy, which reasonably pertain to the loss or damage.
Further, if requested by any authorized representative of The Fund, the
insured claimant shall grant its permission, in writing, for any autho-
rized representative of The Fund to examine, inspect and copy all
records, books, ledgers, checks, correspondence and memoranda in
the custody or control of a third party, which reasonably pertain to the
loss or damage. All information designated as confidential by the
insured claimant provided to The Fund pursuant to this Section shall
not be disclosed to others unless, in the reasonable judgment of The
Fund, it is necessary in the administration of the claim. Failure of the
insured claimant to submit for examination under oath, produce other
reasonably requested information or grant permission to secure rea-
sonably necessary information from third parties as required in this
paragraph shall terminate any liability of The Fund under this policy as
to that claim.
6. Options To Payor Otherwise Settle Claims; Tennination of
Liability
In case of a claim under this policy, The Fund shall have the
following additional options:
(a) To Payor Tender Payment of the Amount of Insurance.
To payor tender payment of the amount of insurance under this policy
together with any costs, attorneys' fees and expenses incurred by the
insured claimant, which were authorized by The Fund, up to the time
of payment or tender of payment and which The Fund is obligated to
pay.
Upon the exercise by The Fund of this option, all liability and obliga-
tions to the insured under this policy, other than to make the payment
required, shall terminate, including any liability or obligation to
defend, prosecute, or continue any litigation, and the policy shall be
surrendered to The Fund for cancellation.
(b) To Payor Otherwise Settle With Parties Other than the Insured
or With the Insured Claimant.
(i) to payor otherwise settle with other parties for or in the
name of an insured claimant any claim insured against under this
policy, together with any costs, attorneys' fees and expenses incurred
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demanded if agreed to by both The Fund and the -insured. Arbitrable matters
may include, but are not limited to, any controver9Y ur claim between The Fund
and the insured arising out of urrelating to this policy, and seroice of The Fund
in connection with its issuance fn" the 1Treach of a policy provision ur other
obligation. Arbitration pursuant to this policy and under the Rules in effect on
the date the demand for arbitration is made ur, at the option of the insured,
the Rules in effect at Date of Policy shaD be binding upon the parties. The
award may include attomeys'fees only if the laws of the state in which the land
is located pennit a court to award attorneys' fees to a prevailing party.
Judgment upon the award rendered by the Arbitrator( s) may be entered in any
court havingjurisdiction thereof.
The law of the situs of the land shall apply to an arbitration under the
Title Insurance Arbitration Rules.
A copy of the Rules may be obtained from The Fund upon request.
15. Liability Limited to this Policy; Policy Entire Contract
(a) This policy together with all endorsements, if any, attached
hereto by The Fund is the entire policy and contract between the
insured and The Fund. In interpreting any provision of this policy, this
policy shall be construed as a whole.
(b) Any claim of loss or damage, whether or not based on negli-
gence, and which arises out of the status of the title to the estate or
interest covered hereby or by any action asserting such claim, shall be
restricted to this policy.
(c) No amendment of or endorsement to this policy can be made
except by a writing endorsed hereon or attached hereto signed by
either the President, a Vice President, or Agent of The Fund.
16. Severability
In the event any provision of the policy is held invalid or unenforceable
under applicable law, the policy shall be deemed not to include that
provision and all other provisions shall remain in full force and effect.
17. Notices, Where Sent
All notices required to be given The Fund and any statement in writing
required to be furnished The Fund shall include the number of this
policy and shall be addressed to The Fund at its principal office at Post
Office Box 628600, Orlando, Florida 32862-8600.
the loss or damage shall be payable within 30 days thereafter.
13. Subrogation Upon Payment or Settlement
(a) The Fund's Right of Subrogation.
Whenever The Fund shall have settled and paid a claim under this
policy, all right of subrogation shall vest in The Fund unaffected by any
act of the insured claimant.
The Fund shall be subrogated to and be entitled to all rights and
remedies which the insured claimant would have had against any
person or property in respect to the claim had this policy not been
issued. If requested by The Fund, the insured claimant shall transfer to
The Fund all rights and remedies against any person or property
necessary in order to perfect this right of subrogation. The insured
claimant shall permit The Fund to sue, compromise or settle in the
name of the insured claimant and to use the name of the insured
claimant in any transaction or litigation involving these rights or
remedies.
If a payment on account of a claim does not fully cover the loss of the
insured claimant, The Fund shaH be subrogated to these rights and
remedies in the proportion which The Fund's payment bears to the
whole amount of the loss.
If loss should result from any act of the insured claimant, as stated
above, that act shall not void this policy, but The Fund, in that event,
shall be required to pay only that part of any losses insured against by
this policy which shall exceed the amount, if any, lost to The Fund by
reason of the impairment by the insured claimant of The Fund's right
of subrogation.
(b) The Fund's Rights Against Non-insured Obligors.
The Fund's right of subrogation against non-insured obligors shall
exist and shall include, without limitation, the rights of the insured to
indemnities, guaranties, other policies of insurance or bonds, notwith-
standing any terms or conditions contained in those instruments which
provide for subrogation rights by reason of this policy.
14 Arbitration
Unless prohibited by applicable law, arbitration pursuant to the Title Insur-
ance Arbitration Rules of the American Arbitration Association may be