When you take out a loan, and use your property as security for that loan, the bank records its mortgage in the county where the property is located. This is to give notice to everyone (these are public records) that it has an interest in your property. But let's say that you pay the mortgage off. The bank should record a release of that mortgage to show the world it no longer has an interest in the property.
However, sometimes a release has not been recorded because there is little incentive in making sure the release is recorded. Recording a release of mortgage can be an afterthought to a real estate transaction that paid off the mortgage, such as a refinance. The paid off lender should record a release, but the parties were allowed to proceed with the transaction, and the bank itself has been paid off. Perhaps the bank had tried to record a release but it was rejected by the county recorder.
Consequently, land title records can be littered with mortgages that are not released and the title company is often asked to secure a release. Generally speaking, it is the mortgagee (the bank) that should prepare and record a release properly and often it is the mortgage document itself that calls for this. However, as to the title insurance policy issued to the new owner or lender, old mortgages might be waived or insured over via endorsement such as the Identified Risk Coverage endorsement.
A legal description error?
A legal description is a formal way to show where a property is located. There are many potential types of errors in such a description, rising from the trivial (such as a minor typo) to the critical (an incorrect measurement or the wrong lot or block number.) The important thing to note is that a legal description is only truly wrong if it fails to describe the property, its location, or gives rise to confusion.
Often, documents containing legal descriptions will have other ways to identify the real estate, such as an address or tax/parcel identification number. Courts can rule this information sufficient if a question is raised as to the completeness of a legal description. The title company can fix confusion in the historical legal description by making sure the correct legal description is used in the current insured conveyance.
A missing interest? Or a break in the chain of title?
Land (real property) usually has many owners throughout its history. A property owner can transfer land through a deed or other instrument of conveyance. Sometimes, a proposed transfer is brought into question when the past series of transfers (the chain of title) is thoroughly examined.
For example, a person who had an ownership interest is not listed on and does not sign the deed that would have transferred their ownership rights to the next person. This issue may be raised on a title exam and then the title commitment. Usually, this can be resolved by working with the title company, which may ask for a prior policy of title insurance or additional clearance, such as an affidavit of heirship or a deceased joint tenancy affidavit, to clear up the matter.
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