As state and federal law enforcement agencies try to figure out how best to deal with conflicting cannabis statutes, it can be difficult for some industries to figure out how to position themselves. This should not be the case for title insurance companies, because their primary job is to provide a policy that guards against unknown liens or a flaw in the chain of title (who can prove legal ownership of a property).
This is why I am baffled by recently published statements saying properties in the 28 states that have in some capacity legalized cultivation, distribution, manufacture or sale of marijuana products will not be not be able to purchase title insurance. This includes the purchase and sale of undeveloped land, commercial properties, retail stores, and houses—any property where marijuana has been used (regardless of whether that use is legal under state law).
Title insurance typically deals with issues like easements, old deeds of trust, reconveyances, liens and the like. It does not have anything to do with how property owners use their property.
It’s true that the government can seize property under property forfeiture laws, some of which relate to the Controlled Substances Act. The government can also change a property’s zoning or designation, or red-tag a building rendering it uninhabitable. None of these actions are covered by title insurance. Standard title insurance policies already exclude coverage for this type of government action.
In reading the title insurance bulletin, I couldn’t find an explanation to drive their anti-cannabis policy. They point to the discrepancy between state and federal laws for seizure of property, but again, that offers no explanation for not insuring title.
It is important to note that most title companies are informing prospective insureds of their anti-cannabis policy up front, so if prospective insureds proceed on the what-they-don’t-know-won’t-hurt-them basis, and later file a claim for a missed deed of trust or easement, could the title company decline the coverage if the property is involved in the cannabis industry? One title company told me no, BUT a word to the wise: if your property will be used for cannabis and the title company asks, don’t hide it! As I have said before, make full disclosures (on this and any other issues) at the earliest possible time.
It seems to me that title insurance is all about guaranteeing property ownership; I don’t understand how the cannabis issue affects it at all. I cannot imagine how any title insurance company would be liable for cannabis issues, any more than they would be if a house burned down or someone slipped and fell while walking around on the property. Those issues are addressed by homeowners’ insurance, not title insurance.
Eventually, I expect conflicts between state and federal cannabis laws will be resolved, but until then, people complying with state laws can still be prosecuted under federal law. I spoke with Mendocino County Sheriff Tom Allman who let me know that his job is to enforce state and local laws. He has no jurisdiction when it comes to federal laws, and that’s fine with him.
If you have questions about getting into real estate, please contact me at rselzer@selzerrealty.com or call (707) 462-4000. If you’d like to read previous articles, visit my blog at www.richardselzer.com.
Dick Selzer is a real estate broker who has been in the business for more than 40 years.
