Delaware Real Estate Practices

Attorney Involvement

Please describe any requirements under applicable state law for attorney, abstractor or other special professional involvement, for example, in the search, examination, opinion of title, signing, closing, disbursement, recording, preparation of documents, and/or policy-issuance.

A licensed Delaware attorney must conduct the settlement and must make the disbursements.  The attorney should also examine the title.

Cancellation/Commitment Fee

Does your state permit or require a cancellation fee or commitment fee upon cancellation?

The rate manual is silent as to cancellation fees.

Certificate of Release (of Mortgage)

If anyone other than the lender (such as a title agent, settlement agent, underwriter or attorney) has the authority to release the security instrument, please describe.

Yes, an attorney that has paid a mortgage off, has the authority to release and satisfy such mortgage pursuant to 25 Del. C. §2120 Authorization to satisfy mortgage.

Deeds

Please describe the kinds of deeds that are customary for commercial and residential transactions.  Please describe the kinds of deeds that are generally not insurable.

It is customary to convey via Special Warranty Deed.  Deeds must have operative words “grant and convey”.

Any deed that fails to contain the words “grant and convey” is not insurable.

Joinder of Spouses

If a non-title holding spouse is required to join in the execution of a deed or a security instrument, please describe.  Any analogous rights, such as those in a civil union or equivalent, should also be addressed. 

No, a non-titled spouse or domestic partner does not have to join in the deed.  Only the individual who is vested with title has to execute the deed or security instrument.

Mortgage Tax

Is there a mortgage tax in your state?  If yes, is it uniform across the state or does it vary?  If it is uniform, please describe.  

No.

Payment Customs

Who customarily pays for:

(a) Owner’s Policy?
(b) Transfer Tax & Recording Fee?
(c) Survey Charges?
(d) Closing/Settlement Fees?

(a) Owner’s policy: Purchaser
(b) Transfer tax and recording fee: Transfer Tax is split equally and Recording Fee is paid by the purchaser for deed and mortgage and seller for satisfaction of mortgage.
(c) Survey charges: Purchaser
(d) Closing/settlement charges: Purchaser, unless seller is represented by counsel, then they pay fees associated with representation.

Policy Countersignatures

Please describe any statutory or regulatory requirements for countersignatures in order to issue the policy (for example, residency requirements).

Must be licensed with the Department of Insurance to execute commitment and policy.  Do not have to be an attorney to get licensed and there are no residency requirements.

Real Estate Taxes

Please describe the general tax year, due dates, and delinquency dates, including lien dates and payment cycle.

New Castle County – Tax Year is July 1- June 30 and taxes are due by September 30th, and become delinquent on October 1st.

Kent County – Tax Year is June 1 – May 31 and taxes are due by September 30th, and become delinquent on October 1st.

Sussex County – Tax Year is July 1-June 30 and taxes are due by September 30th, and become delinquent on October 1st.

Please consult with a local underwriter for information relating to real estate taxes on the subject property.

Search and Examination Fees

Is it permissible and/or customary to charge a separate search and/or examination fee, and under what circumstances?  If your jurisdiction is all-inclusive, please state that.

Yes, it is both permissible and customary to charge a separate search and examination fee.  Delaware is not all inclusive.

Search Requirements

Is there a minimum period of time for a title search required: (a) by state law, (b) pursuant to marketable record title acts, or (c) by any other applicable title examination standards (e.g., state bar association)?  Please respond to each category.  If a minimum search period exists for any category, please state it.

There is not a minimum search period required by statute or marketable record title act.

Security Instruments (Deed of Trust vs. Mortgage)

Please describe the customary and permissible form(s) of security instruments used in your state. 

Who can be listed as the trustee on the Deed of Trust (e.g., residency and/or natural person requirements, etc.)? Can an underwriter or title agent be designated as the trustee, and, if so, is it customary?

Mortgage. N/A.

Standard Exceptions and Requirements

Please identify the standard exceptions and requirements that are customarily used in your state.

Standard Exceptions
1.         Defects, liens, encumbrances, adverse claims or other matters, if any created, first appearing in the public records or attaching subsequent to the effective date hereof but prior to the date the proposed insured acquires for value of record the estate or interest or mortgage thereon covered by this Commitment.
2.         Rights or claims of parties in possession not shown by the public records.
3.         Encroachments, overlaps, boundary line disputes, or other matters which would be disclosed by an accurate survey and inspection of the premises.
4.         Easement or claims of easement, not shown by the public records.
5.         Any lien, or right to a lien, for services, labor, or material heretofore or hereafter furnished, imposed by law and nor shown by the public records.
6.         Taxes or special assessments which are not shown as existing liens by the public records.

Acreage or accuracy of area content not insured.

Standard Requirements

1.         Payment to or for the account of the grantors or mortgagors of the full consideration for the estate or interest to be insured.
2.         Proper instrument(s) creating the estate or interest to be insured must be executed and duly filed for record, to-wit.

a.         DEED FROM:
            DEED TO:
b.         MORTGAGE FROM:
            MORTGAGE TO:

3.         Copy of Completed Settlement Statement to be filed with this Company.
4.         Payment of all taxes, charges, assessments, levied and assessed against subject premises, which are due and payable.
5.         Satisfactory evidence should be had that improvements and/or repairs or alterations thereto are completed; that contractor, subcontractors, labor and materialmen are all paid.
6.         Taxes and Assessments

            Tax ID #

State-specific Policy Variations

If there are state-specific changes to the provisions in the ALTA policies (e.g., Arbitration, Minerals), please describe.

None.

Title Insurance Form and Filing Regulations

Please describe the form and/or rate filing requirements, if any, related to policies and endorsements.  Please describe any applicable rating bureau. 

Dictated by the Rating Manual of the Delaware Title Rating Bureau.

Transfer Taxes

Is there a transfer tax in your state? If yes, is it uniform across the state or does it vary?  If it is uniform, please describe.

Yes there is transfer tax in Delaware.  It is 3% throughout the state and does not vary.

Usury

Is usury coverage available?

No.

Withholding Taxes

What are your state’s requirements, if any, with regard to withholding proceeds from a sale, similar to but not including FIRPTA?

Form 5403 (http://www.revenue.delaware.gov/services/current_bt/5403.pdf) must accompany every deed to be recorded in Delaware.  Every non-resident individual, pass through entity or corporation who makes, executes, delivers, accepts, or presents for recording

any document, except those exemptions defined or described in Sections 1126, 1606 and 1909 of Title 30, or in whose behalf any document is made, executed, delivered, accepted or presented for recording, shall be subject to pay for and in respect to the transaction or any part thereof, a Real Estate Tax at the rate of six and 95/100 percent (6.95%) of the value of the gain on the property sold as represented by such document, which tax shall be payable at the time of making, execution, delivery, acceptance or presenting of such document for recording. Said tax is to be paid by the Transferor(s)/Seller(s).

Witness Requirements

Are witnesses required on a deed or security instrument?  If so, please describe.

No.