Florida title search and common defects: how to read a Title Commitment and cure problems before closing

Why this matters for a Canadian buyer

In Quebec, the notaire is a public officer who, by law, examines the title and publishes the deed at the Registre foncier. The notaire's professional liability is backed by a Chambre des notaires indemnification fund of up to CAD 100,000 per claim. In other provinces, a real estate lawyer plays the equivalent role through provincial land titles or registry systems, often backed by a public title-assurance fund (Ontario), a Land Title Assurance Fund (BC), or analogous provincial guarantees.

Florida has none of those structures. Title is established by private contract and private insurance. The title agent (often a licensed attorney or a title-insurance underwriter's branch) is paid by the parties, not appointed by the state. The state-maintained Florida public records exist at the county clerk level, but no government body certifies that a deed conveys good title. The replacement mechanism is title insurance: a private indemnity contract that pays out if a covered defect surfaces after closing.

The practical consequence: a Canadian buyer who skips a careful read of the Title Commitment, or who waives objections without understanding what Schedule B-II permanently excludes, has no public registry to rely on and no professional fund to claim against. The Commitment, plus the Owner's Policy that follows it, are the entire safety net.

The title search process

The title search is mechanical work performed by a title examiner or abstractor. The examiner pulls every recorded instrument touching the property's legal description, builds the chain of conveyances, and identifies anything that could attach a third-party claim to the title. It is usually invisible to the buyer because it happens between contract execution and the issuance of the Title Commitment.

Practically, the examiner does five things in sequence. First, the examiner identifies the property by its legal description (lot, block, subdivision plat, or metes and bounds) and pulls the county clerk's grantor-grantee index back to a recorded conveyance that satisfies the Marketable Record Title Act: a "root of title" recorded at least 30 years before the search date (FL Stat §712.01(6), §712.02). Older interests still bind the property only if they were preserved by a notice of claim filed under §712.05 or fall within one of the §712.03 exceptions (utility easements, government interests, recorded restrictive covenants properly preserved).

Second, the examiner reads forward from the root of title, deed by deed, looking for breaks: missing signatures, defective acknowledgments, unjoined spouses, deceased grantors whose probate is not in the record, or transfers from people who did not own what they conveyed. Each break is a potential defect.

Third, the examiner pulls all recorded encumbrances against each owner in the chain during the period that owner held title: open mortgages, recorded judgments, mechanic's liens (FL Stat Chapter 713), HOA and condo association liens (§720.3085, §718.116), county property tax certificates and tax deed records, code-enforcement liens, and the various federal and state tax liens.

Fourth, the examiner runs a federal records search for any Notice of Federal Tax Lien (NFTL) filed by the IRS under 26 USC §6321 and §6323. Federal tax liens filed before closing follow the property even after sale, regardless of whether the buyer had knowledge, unless the IRS issues a release or a certificate of discharge.

Fifth, the examiner reviews the recorded subdivision plat, declarations of condominium or HOA, and any recorded easements or restrictive covenants. The output of all of this is consolidated into the Title Commitment.

A typical residential search in a Florida coastal county takes 5 to 10 business days from contract execution. A complex commercial parcel or one with a long ownership chain can take longer.

Reading a Title Commitment

The Title Commitment is the title insurer's binding promise to issue the Owner's Policy if the listed Requirements are satisfied by closing. It uses the standardized ALTA format, divided into four schedules. Reading it correctly is the single most important diligence task between contract and closing.

Schedule A: Identification

Schedule A states the basic facts of the transaction: the proposed insured (typically the buyer), the proposed amount of insurance (the purchase price for the Owner's Policy and the loan amount for the Lender's Policy), the effective date of the search, the type of policy (ALTA Owner's Policy, Lender's Policy, or both), and the legal description of the land.

Verify that your name, the price, and the legal description are exactly correct. A misspelled name or a wrong unit number can void coverage. The effective date matters too: the policy will only cover defects of record as of that date, so any later-recorded liens (a mechanic's lien filed by an unpaid contractor between the search and closing, for example) need to be re-checked at closing through a "bring-down" search.

Schedule B-I: Requirements

Schedule B-I lists what must happen before the policy can be issued. These are the defects to cure. Typical items include payment and recording of the satisfaction of the existing mortgage, payment of any recorded judgments or tax liens, payment of HOA or condo arrears with a current estoppel letter, signature of an unjoined spouse or co-owner, recording of probate documents, recording of corrective affidavits for description errors, and delivery of a properly executed deed from the seller to the buyer.

Most B-I items are routine and resolved at the closing table by directing the closing agent to pay specific creditors out of the seller's proceeds. The harder cases (missing heirs, defective probate, unrecorded conveyances in the chain) may require a quiet title action or a curative title proceeding in advance of closing.

Schedule B-II: Exceptions

Schedule B-II is where many buyers stop reading, and where most surprises hide. These are the items the policy will not cover even after issuance. Reading B-II is reading the limit of your protection.

Standard B-II exceptions in Florida include: recorded subdivision plat restrictions and HOA covenants (binding on the property regardless of who owns it), recorded utility easements (typically held by Florida Power & Light, the local water authority, the cable franchisee, the city for stormwater), shared-access easements with neighbors, building setback restrictions, and recorded mineral or oil rights reservations (uncommon but present in some inland parcels).

Standard "general" exceptions also commonly appear: rights of parties in possession not shown by public record, matters that an accurate survey would disclose, encroachments and boundary line disputes not shown by public record, and unrecorded mechanic's liens. Many of these can be removed by providing a current survey, a seller's affidavit of no work performed in the prior 90 days, and a "marked-up" Commitment that the title agent re-issues at closing. This is called a "tied-down" or "extended-coverage" Owner's Policy and is worth requesting.

The decision a buyer must make at this stage is whether each B-II exception is acceptable. A utility easement crossing the back yard is usually acceptable. A shared driveway easement that means the neighbor has a permanent right to drive across the front lawn may not be. An exception preserving a third party's mineral rights to oil and gas under a Florida residential lot is almost always immaterial in practice but should be understood, not waived without thought.

Schedule C: Legal description

Schedule C contains the precise cadastral description, drawn from the most recent recorded plat or metes-and-bounds description. Verify it matches the description in the contract, the survey, and the deed being delivered. A discrepancy between any of these documents will block closing or void coverage.

Common Florida title defects and how they are cured

Defects fall into five buckets. The cure for each varies in cost, time, and difficulty.

Liens for money owed

These are by far the most common defects. They cover any recorded claim against the property securing a debt of any prior owner: open mortgages, unpaid property tax certificates, mechanic's liens (Florida's construction lien law, Chapter 713, gives unpaid contractors a powerful tool), HOA and condo assessments (FL Stat §720.3085 for HOAs, §718.116 for condos), Florida Department of Revenue liens, IRS federal tax liens (filed under 26 USC §6323), and code-enforcement liens recorded by the city or county.

The cure is mechanical: the closing agent obtains an exact payoff figure (a "payoff letter" from each creditor or, for HOA arrears, an "estoppel letter"), funds the payoff out of the seller's proceeds at closing, and records the satisfaction or release. Federal tax liens are a special case: the IRS will not always release on demand, and complex IRS lien situations may require an application for a Certificate of Discharge (Form 14135) that takes weeks to process. Flag any NFTL on Schedule B-I as a closing-timeline risk.

Estate and capacity defects

These arise when a prior owner died without their estate being properly administered, when a deed was signed by a married person without the spouse joining, when a former co-owner's interest was not formally transferred, or when an heir was missed in a probate proceeding.

The cure varies. A missing spousal signature is fixed by obtaining the signature, often by an after-acquired affidavit. An unfinished probate is closed by completing the proceeding and recording the certified order. A missing heir of a deceased prior owner is the hardest case and typically requires a quiet title action (Florida Statutes Chapter 65) in the circuit court of the county where the property is located. A quiet title action runs roughly 3 to 6 months and costs USD 2,500 to USD 10,000 in legal fees and costs depending on complexity, including service by publication if heirs cannot be located after diligent search.

Chain-of-title defects

These are errors in past deeds: misspelled names, defective notarial acknowledgments, missing witnesses (Florida deeds require two witnesses under FL Stat §689.01), incomplete legal descriptions, or recorded deeds that purport to convey what the grantor did not own.

Minor errors are cured by recording a corrective deed or a scrivener's affidavit. Material defects, especially anything that suggests the prior conveyance did not actually transfer the property, may again require a quiet title action.

Easements, covenants, and use restrictions

These are not defects in the strict sense; they are valid third-party rights recorded against the land. The buyer takes the property subject to them.

The diligence task is reading the recorded HOA declaration, the subdivision plat, and any standalone easement instruments to understand what they actually say. A "no commercial use" covenant in an HOA declaration may prevent a Canadian investor from running a short-term rental. A recorded utility easement may forbid construction of a pool or shed in a strip along the lot line. These restrictions cannot be cured; they must be understood and accepted, or the buyer walks away.

Survey-disclosed defects

A current survey, certified to the buyer and the title insurer, frequently reveals issues the public record alone does not: an encroachment by a neighbor's fence, a structure built across a setback line, a swimming pool installed over a utility easement, or a building footprint that violates the subdivision plat.

Under FAR/BAR Standard B, survey-disclosed encroachments and violations are treated as title defects, with the same 5-day buyer notice and 30-day seller cure window. The cure can range from obtaining an easement or release from the affected party (cheap), to physically removing the offending structure (expensive), to filing a quiet title action establishing prescriptive rights (slow).

The contractual cure mechanism: FAR/BAR Standard A

The standard Florida residential contract (FAR/BAR-7 or its AS-IS variant) contains a mandatory title cure framework in Standard A. The framework is precise and enforced strictly. Missing a deadline forfeits rights.

The buyer has 5 days after receipt of the Title Commitment to deliver written notice to the seller specifying any defect that renders title unmarketable. Failing to do so is deemed acceptance of title as it stands. The seller then has 30 days ("Cure Period") after receipt of the buyer's notice to take reasonable diligent efforts to remove the defects, at the seller's expense.

If the seller cures within the Cure Period, closing proceeds on the original Closing Date or within 10 days of receipt of the seller's cure notice. If the seller cannot cure within the Cure Period, the buyer has 5 days after the Cure Period expires to choose one of three paths: (a) extend the Cure Period for a further period not to exceed 120 days; (b) accept title with the existing defects and close anyway; or (c) terminate the contract and receive a full refund of the EMD, releasing both parties.

The structural takeaway: Canadian buyers should never assume title cure happens passively. The deadlines are short, the burden of objection is on the buyer, and silence equals acceptance.

Canada vs Florida: jurisdictional comparison (Quebec reference)

The structural differences are not stylistic. They reflect entirely different legal traditions and consumer-protection assumptions. The table below uses Quebec as the Canadian reference. Equivalent comparisons for Ontario, British Columbia, Alberta, and other provinces are forthcoming.

The most important structural point for a Canadian buyer: in Florida, there is no notaire-equivalent who works for both parties and is publicly responsible for clearing title. The title agent is a private party hired by one side or jointly. The buyer's safety net is the Title Commitment they read, the Owner's Policy they purchase, and the closing attorney they engage if they want adversarial review. Reading Schedule B-II is not optional.

Worked example: a USD 450,000 single-family in Broward County

A Canadian couple resident in Montreal signs a FAR/BAR contract on a USD 450,000 single-family home in Broward County. They are paying cash. The seller is a Florida resident who has owned the property for 12 years.

Day 1 (Effective Date): Contract signed. EMD of USD 22,500 (5% of price) wired to the closing agent's escrow account.

Day 8: Title Commitment issued. Schedule A confirms buyer name, USD 450,000 owner's policy. Schedule B-I lists three Requirements: (1) payoff and satisfaction of the seller's USD 218,000 mortgage with Wells Fargo, (2) payment of USD 1,420 in HOA arrears (estoppel letter from the HOA), (3) recording of the warranty deed from seller to buyer at closing. Schedule B-II lists 11 Exceptions, including a 5-foot utility easement along the rear lot line in favor of FPL, the recorded HOA declaration, and a standard "matters that an accurate survey would disclose" exception.

Day 11: Buyer's closing attorney reviews the Commitment and the survey ordered separately. Survey shows a wood fence built 7 inches over the rear utility easement. Attorney sends a written title objection notice to the seller within the 5-day FAR/BAR window, identifying the fence encroachment as a survey-disclosed defect under Standard B.

Day 22: Seller, within the 30-day Cure Period, obtains an FPL "no objection" letter confirming the utility company has no objection to the fence's continued presence and waives any future enforcement, recorded as a partial release of the easement. Seller delivers proof of cure.

Closing day (Day 35): Closing agent prepares the ALTA Settlement Statement. The seller's payoffs are funded from sale proceeds: USD 218,000 to Wells Fargo, USD 1,420 to the HOA. Buyer wires USD 432,000 in cleared funds (USD 450,000 minus the USD 22,500 EMD held in escrow, plus closing costs of approximately USD 4,500 for title insurance premium of USD 2,325, doc stamps of USD 0 on the deed since Florida doc stamps are typically paid by the seller, recording fees, and closing-agent service fees).

Title insurance premium calculation: USD 5.75 per USD 1,000 on the first USD 100,000 = USD 575. Plus USD 5.00 per USD 1,000 on the next USD 350,000 = USD 1,750. Total Owner's Policy premium = USD 2,325, paid one-time at closing, coverage lasting as long as the buyer or their heirs hold the property (FAC 69O-186.003).

After closing, the warranty deed is recorded with the Broward County Clerk. The Owner's Policy is issued. The Schedule B-II exceptions remain permanent limitations on coverage: if the FPL waiver letter is challenged in 15 years and the fence has to be removed, the Owner's Policy will not pay because the fence encroachment was a known excepted matter, not a covered defect.

Common mistakes Canadian buyers make

1. Treating the Title Commitment as a formality. Many buyers, especially those used to a Quebec notaire who walks them through the file in person, sign through the Commitment without reading Schedule B-II. The exceptions list is the limit of coverage; everything in it is a known and accepted carve-out.

1. Missing the 5-day objection window. FAR/BAR Standard A is strictly enforced. A buyer who fails to deliver a written objection within 5 days of receiving the Commitment is deemed to have accepted title as it stands, including defects.

1. Assuming the closing agent represents the buyer. Unless the buyer explicitly engages the closing agent as their attorney (legal in Florida only if the closing agent is a licensed Florida attorney representing only the buyer), the closing agent is a neutral facilitator. They do not pursue defects on the buyer's behalf the way a Quebec notaire would.

1. Skipping the survey. Florida title insurance routinely excludes "matters an accurate survey would disclose." Without an updated survey certified to the buyer, encroachments and setback violations are uninsured. A Florida boundary survey costs typically USD 350 to USD 750 for a residential lot.

1. Confusing title insurance with marketability. Title insurance pays a sum of money if a covered defect surfaces. It does not give the buyer the property free and clear. A defect that ends in a successful adverse claim by a missing heir means the insurer pays out the policy amount, but the buyer may still lose the property.

1. Ignoring municipal lien searches. Florida cities and counties record code-enforcement and utility liens that may not appear in a standard title search of the county clerk's records. A separate municipal lien search with the relevant city is required to surface these. The FAR/BAR contract specifically references this in its title-evidence language.

1. Waiving the Owner's Policy because the lender requires only a Lender's Policy. A Lender's Policy protects only the lender's interest, decreasing as the loan is paid down. A Canadian buyer paying cash who declines an Owner's Policy has no title insurance at all. For the typical FL premium of roughly USD 5 per USD 1,000 of price, this is rarely a rational economy.

1. Underestimating IRS lien complexity. A Notice of Federal Tax Lien against the seller can take weeks to release. If the search surfaces an NFTL late in the timeline, the closing date may slip by 30 to 90 days regardless of the cure period.

Actionable buyer checklist

1. As soon as the contract is signed, confirm the title agent's identity, contact, and license number. Verify the title agent has separate fiduciary insurance.
2. Ask the title agent for an estimated timeline for the Title Commitment and the closing-day "bring-down" search.
3. On receipt of the Commitment, read Schedule A first. Verify name spelling, price, legal description.
4. Read Schedule B-I in full. For each Requirement, ask the title agent who is responsible for satisfying it and what proof will be delivered at closing.
5. Read Schedule B-II line by line. For each Exception, ask: is this acceptable? If not, can it be removed by survey, affidavit, or further documentation?
6. Order an independent boundary survey, certified to the buyer and the title insurer. Compare survey to the legal description on Schedule C.
7. Order a municipal lien search with the city where the property is located, if not already included.
8. Within 5 days of receiving the Commitment, deliver any objections in writing to the seller through the closing agent or your attorney. Cite Standard A.
9. Confirm with the title agent that the Owner's Policy will be issued in the buyer's name, in the full purchase amount, with the "matters an accurate survey would disclose" general exception removed by virtue of the survey.
10. At closing, request the marked-up Commitment showing all Requirements satisfied. The Owner's Policy itself may not be issued for several weeks, but the marked-up Commitment is your evidence of coverage.
11. Retain the Owner's Policy and the recorded deed in safe storage. Both will be needed if a covered defect ever surfaces.

FAQ

Do I need a Florida attorney, or is the title agent enough? The title agent is sufficient for a clean transaction with no defects on Schedule B-I beyond standard payoffs. For any cross-border buyer with cash above CAD 200,000 in the deal, engaging an independent Florida-licensed real-estate attorney to review the Commitment and represent only the buyer is a low-cost ($800 to $1,500 typical) protection layer. The closing agent is neutral; an attorney is not.

Is the Owner's Policy mandatory? No. Florida law does not require an Owner's Policy. A lender will require a Lender's Policy as a condition of any mortgage. A cash buyer can decline the Owner's Policy, but doing so is rarely advisable for the reasons above.

What if a defect surfaces years after closing? If the defect is covered by the Owner's Policy (it predates the policy date and is not in Schedule B-II), the buyer files a claim with the title insurer. The insurer either cures the defect at its expense or pays the policy amount. The Owner's Policy lasts as long as the buyer or their heirs hold an interest in the property.

Does title insurance cover boundary disputes? Standard Owner's Policies exclude "matters an accurate survey would disclose," which captures most boundary issues. Extended-coverage policies that remove this general exception (via a current survey and seller's affidavit) cover survey-disclosed matters going forward. Confirm with the title agent which policy you are getting.

Is the title insurance premium negotiable? No. Florida is a promulgated-rate state. The premium is set by Rule 69O-186.003 of the Florida Administrative Code and is identical at every title agent in the state. The agent's separate search and exam fee and closing service fee are negotiable; the premium itself is not.

What is the difference between an "ALTA" Owner's Policy and a state-form policy? ALTA forms are the national standard, used by virtually all Florida title insurers. They have well-developed case law and broad acceptance. State-specific forms exist in some jurisdictions but are not material in Florida residential practice.

Does a tax deed sale or foreclosure deliver clean title? No. Properties acquired at Florida tax deed sales or foreclosure auctions almost always carry residual title issues. A quiet title action under Chapter 65 is the standard cleanup tool, taking 3 to 6 months and costing USD 2,500 to USD 10,000 typically. Title insurers generally will not insure a tax-deed property until quiet title is complete.

How does this interact with FIRPTA when I sell? Title and FIRPTA are separate analyses. FIRPTA (Foreign Investment in Real Property Tax Act) is a federal withholding regime that applies on resale by a non-resident, withholding 15% of the gross sale price. It does not affect the buyer's title search at acquisition. See the FIRPTA guide for sale-side mechanics.

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CanadaFlorida Editorial Team

Research drawn from primary public sources cited at the bottom of every guide: U.S. and Florida statutes, U.S. and Canadian federal agencies, official Florida county and state authorities, and Canadian provincial bodies where applicable. Every figure, rate, threshold, and deadline in this guide is drawn from a verifiable primary source listed in the Sources section. The article is updated whenever the underlying rules change, with a fresh review date stamped at the top.

Essential disclaimer

Educational purpose only. This document is reference information. It is not legal, tax, accounting, real estate, immigration, medical, or financial advice and does not create a client-professional relationship.

Before any concrete decision, consult a licensed professional in the relevant jurisdiction: a Florida-licensed real estate attorney for title and contract questions, a cross-border tax professional for tax matters, a Florida-licensed title insurance agent for coverage questions, and a Quebec notaire or your provincial real estate lawyer for the Canadian-side analysis.

Treat this content as a research starting point, not as professional advice. A consultation with a licensed professional in the relevant jurisdiction is indispensable before any decision.