Ark. Code § 23-103-402

Current with all legislation passed during the 2023 Regular and First Extraordinary Sessions.

Section 23-103-402 - Definitions

As used in this subchapter:

(1) "Closing" means the collection and disbursement of funds and title insurance premiums out of escrow in connection with a transaction involving either personal or real property, including the transfer of title or creation of a lien on the title;

(2) "Closing agent" means a person that facilitates a closing;

(3) "Depositor" means the person providing funds or documents for delivery to a depository in connection with a transaction involving real property;

(4) "Depository" means a title insurer, title insurance agency, closing agent, or qualified financial institution receiving a deposit of funds or documents;

(5) "Escrow" means the act or process of providing closing services or services pursuant to an escrow agreement;

(6) "Escrow account" means the demand deposit account maintained by a title insurer or title insurance agency at a qualified financial institution into which the title insurer or title insurance agency deposits and disburses funds collected from any person that is or will be a party to a transaction involving real property;

(7) "Person" means an individual or any partnership, association, cooperative, corporation, firm, trust, limited liability company, or other legal entity;

(8) "Qualified financial institution" means a bank, credit union, or savings and loan association regulated, supervised, or examined by federal or state authorities having regulatory authority over banks and trust companies;

(9) "Risks" means the danger or hazards of a loss by encumbrance, a defective or invalid title, or adverse claim to title covered under a title insurance policy;

(10) "Title insurance agency" means a person that has an agency contract under § 23-103-407 with a title insurer;

(11)

(A) "Title insurance agent" means an individual affiliated with a title insurance agency who is authorized on behalf of a title insurer to issue a title insurance report or title insurance policy and is:

(i) A resident of the State of Arkansas licensed under § 23-64-101 et seq.; or

(ii) A nonresident individual licensed under § 23-64-101 et seq. and employed by a resident licensee.

(B) "Title insurance agent" does not include:

(i) An individual employed by a title insurance agency that does not sell or negotiate title insurance but who performs marketing duties under the supervision of a title insurance agent;

(ii) An individual employed by a title insurance agency that is a closing agent and does not solicit, sell, or negotiate title insurance; or

(iii) A closing agent that provides closing services but does not otherwise engage in title insurance business in the State of Arkansas;

(12)

(A) "Title insurance business" means:

(i) Issuing or offering to issue as an insurer a title insurance policy or closing protection letter;

(ii) Transacting or proposing to transact any of the following activities when conducted or performed in contemplation of or in conjunction with the issuance of a title insurance report or policy:

(a) Guaranteeing, warranting, or otherwise insuring the status of title, liens, encumbrances, or other matters of record;

(b) Executing title insurance policies;

(c) Effecting contracts of reinsurance;

(d) Underwriting titles; or

(e) Collecting, disbursing, or receiving title insurance premiums, unless incidental to serving as a closing agent; or

(iii) Doing or proposing to do any business substantially equivalent to the matters described in this subdivision (12) in a manner designed to evade this subchapter.

(B) "Title insurance business" does not include:

(i) A closing or escrow; or

(ii) The activities of a closing agent or other party performing a closing or escrow;

(13) "Title insurance policy" means a contract, including any coverage, enhancements to coverage, or endorsements, insuring or indemnifying owners of or other persons lawfully interested in personal or real property against loss or damage arising from any of the following conditions existing on, before, or subsequent to the policy date and not specifically excepted or excluded:

(A) Defects in or liens or encumbrances on the insured title;

(B) Unmarketability of the insured title;

(C) Invalidity or unenforceability of liens or encumbrances on the insured title of the personal or real property;

(D) Title being vested other than as stated in the policy;

(E) Lack of a legal right of access to the land that is part of the insured title in a policy relating to real property;

(F) Lack of priority of the lien of any insured mortgage over any statutory lien for services, labor, or materials as specifically described in the policy;

(G) Invalidity or unenforceability of any assignment of an insured mortgage subject to certain conditions; or

(H) The priority of any lien or encumbrance over the lien of an insured mortgage;

(14)

(A) "Title insurance premium" means the funds paid to the title insurer and to an appointed title insurance agency as consideration for the amount of liability assumed by a title insurer under a title insurance policy, including all amounts retained by the title insurance agency pursuant to the title insurance agency's contract with the title insurer.

(B) "Title insurance premium" does not include charges for the performance of services related or incidental to title insurance or closings that are disclosed to the person charged, including without limitation:

(i) Title search, abstracting, or title examination fees;

(ii) Title opinion fees;

(iii) Document preparation fees;

(iv) Escrow or closing fees;

(v) Notary fees;

(vi) Attorney's fees;

(vii) Fees incurred to cure defects in title;

(viii) Tax report or tax certification fees;

(ix) Title report fees;

(x) Processing fees;

(xi) Courier fees; and

(xii) Fees incident to the issuance of a title insurance report or policy;

(15) "Title insurance report" means a preliminary report, commitment, or binder issued before the issuance of a title insurance policy containing the requirements, terms, conditions, exceptions, and any other matters incorporated by reference under which a title insurer is willing to issue a title insurance policy;

(16) "Title insurer" means a company authorized under the laws of this state to transact title insurance business; and

(17) "Underwrite" means the acceptance or rejection of risk on behalf of the title insurer.

Ark. Code § 23-103-402

Acts 2007, No. 684, § 6; 2009, No. 1190, § 1; 2011, No. 515, § 1.