Idaho 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.

The Idaho statutes govern all aspects of title insurance.  See Idaho Stat. 41-2704.   A policy insuring property located in Idaho may only be issued by an agent that has obtained a title insurance agent’s license for each county in which policies will be written.  See Idaho Stat. 41-2710.   In order to obtain a license from the state, the agent-applicant must verify by oath, that such applicant if an individual, is a bona fide resident of Idaho, if a firm or association is composed wholly of Idaho residents, or if a corporation is duly authorized or qualified to do business in the state, that the individual agent (or if a corporation or association, its managerial personnel who are going to exercise the license privilege) has reasonable experience or instruction in the field of title examinations and title insurance and the insurance laws of Idaho, that the applicant owns or leases, separately or with another, and maintains an adequate, complete set of tract indexes and abstract records of each county wherein the agent proposed to do business, and such application shall be indorsed by the title insurer with whom the agent proposed to do business that the proposed agent is known to have a good reputation and is  worthy of public trust and that such title insurer knows of no fact or condition that would disqualify the agent from receiving the permit.  Id. 

The title agent must obtain a surety bond for each escrow officer that will handle escrow funds or conduct closing and settlement.  See Idaho Stat. 41-2710 and 41-2711. 

Cancellation/Commitment Fee

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

The Idaho Rate Manual establishes a charge for the cancellation of a commitment at 20% of the basic schedule of charges if cancelled prior to closing and at 80% of the basic schedule of charges if cancelled after closing. 

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.

A title insurer or agent may reconvey a deed of trust if the obligation secured by the deed of trust has been fully paid by the title insurer or agent or if the title insurer or agent has satisfactory evidence of the full payment of the obligation secured by the deed of trust.  See Idaho Stat. 45-1202.  The title insurer or agent must deliver a notice of intent to release or reconvey within 30 days after the payment in full of the secured note or from receipt of satisfactory evidence of the payment in full of the secured note to the beneficiary or servicer together with a copy of the proposed reconveyance.  The contents of the notice of intent to release or reconvey is described in Idaho Stat. 45-1203.  The title insurer or agent shall not record the reconveyance if prior to the expiration of 60 days from mailing the notice of intent to reconvey the beneficiary or servicer objects to the reconveyance.  See Idaho Stat. 45-1204. 

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.

A warranty deed or special warranty deed is customarily provided in commercial and residential transactions.   Underwriting approval should be obtained if an insurance policy is being issued based on a quitclaim deed.  

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. 

Idaho is a community property state.  Accordingly, a non-title spouse must join in the execution of deeds or security instruments on all community property.  It is often difficult to ascertain whether property is or is not community property.  As such, it is the custom to have a non-title spouse either join in the execution of a deed or security instrument or separately convey his or her interest in the property. 

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.  

There is no mortgage tax in Idaho.

Payment Customs

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

Pursuant to the terms of the standard Purchase Contract, the seller pays for the owner’s policy.  The seller and buyer will pay for their respective recording fees and escrow fees. 

Policy Countersignatures

What kinds of countersignatures, if any, are required to issue the policy? 

A title insurer shall not issue a policy of title insurance or guaranteed certificate of title or other guaranty of title covering any property located within Idaho unless countersigned by a person, partnership, corporation or agency owning and maintaining a complete set of tract indexes or abstract records of the county in which such property is located; excepting, that any title insurer may issue such policies, guaranties or certificates directly and without such countersignature covering property in any county where it owns and maintains such indexes and records, or where no such indexes and records are owned and maintained.  Idaho Stat. 41-2702.

Real Estate Taxes

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

Taxes for the first and second half of the year are due on November 20.  Taxes for the first half year are delinquent if not paid by December 20.  Taxes for the second half of the year remain due until paid and are delinquent if not paid by June 20 of the following year.   

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.

The charge for the search and examination are included in the basic schedule of charges.  An additional fee is charged if the property includes multiple parcels that are located in a different block, section or county or when the parcels are not under common ownership. 

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.

State law does not require a minimum time search.  Instead, a title insurance policy may be issued based on a search and examination of the title and a determination of insurability of title in accordance with sound title underwriting principles.  See Idaho Stat. 41-2708. 

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?

A deed of trust may be used on property that is located within an incorporated city or village, on property not exceeding 80 acres, regardless of its location, provided that the property is not principally used for the agricultural production of crops, livestock, diary or aquatic goods or on property not exceeding 40 acres regardless of its location or its use.  See Idaho Stat. 45-1502(5).  

The trustee of a trust deed may be any member of the Idaho state bar, any bank or savings and loan association authorized to do business under the laws of Idaho or the United States, an authorized Idaho authorized trust institution or any corporation authorized to conduct a trust business under the laws of the United States or a licensed title insurance agent or title insurance company authorized to transact business under the laws of the state of Idaho.  See Idaho Stat. 45-1504. 

Any interest in real property which is capable of being transferred may be mortgaged.  See Idaho Stat. 45-1001. 

Standard Exceptions and Requirements

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

The standard general exceptions are: 

1)      Taxes or assessments which are not shown as existing liens by the records of any taxing authority that levies taxes or assessments on real property or by the Public Records. Proceedings by a public agency which may result in taxes or assessments, or notices of such proceedings, whether or not shown by the records of such agency or by the Public Records.

2)      Any facts, rights, interests, or claims which are not shown by the Public Records, but which could be ascertained by an inspection of the Land or by making inquiry of persons in possession thereof.

3)      Easements, liens, or encumbrances, or claims thereof, which are not shown by the Public Records.

4)      Any encroachment, encumbrance, violation, variation, or adverse circumstance affecting the Title that would be disclosed by an accurate and complete land survey of the Land and not shown by the Public Records.

5)      (a) Unpatented mining claims; (b) reservations or exceptions in patents or in Acts authorizing the issuance thereof; (c) water rights, claims, or title to water, whether or not the matters excepted under (a), (b) or (c) are shown by the Public Records.

6)      Any lien or right to a lien for services, labor, or material heretofore or hereafter furnished, imposed by law and not shown by the Public Records.

State-specific Policy Variations

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

There is no change to the ALTA policies required by the state.

Title Insurance Form and Filing Regulations

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. 

Title insurance is under the control and supervision of the director of the Idaho Department of Insurance.  See Idaho Stat. 45-2705.  All rates and forms must be filed with the Department of Insurance.  See id.  All forms and rates submitted for filing must include the NAIC Property and Casualty Transmittal Document as well as the Idaho Filing Submission Documentation Form which may be found at the Idaho Department of Insurance website at www.doi.idaho.gov.  

A copy of the Idaho Rate Manual may be found at www.stewartregionf.com.

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.

There is no transfer tax in Idaho.

Usury

Is usury coverage available?

Usury coverage is not available in Idaho. 

Withholding Taxes

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

There is no state specific requirement regarding withholding proceeds from a sale.

Witness Requirements

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

A witness is not required on a deed or security instrument.  Instead, the document must be properly acknowledged for recording.  See Idaho Stat. 55-805.