Title Insurance Challenges In The Marijuana Industry

By |2018-11-19T18:10:26+00:00November 13th, 2018|Title Insurance and Escrow|
  • Contradictions between State and Federal laws make access to marijuana business title insurance difficult for many business owners
  • Title insurance protects the new owner from any pre-existing issues related to the property such as liens or levies
  • Most title companies instruct all underwriting agents not to insure properties if the property is or ever has been used in relation to marijuana

The marijuana industry is plagued by the contradictions of States with legal marijuana laws, and that of the Federal Government’s Controlled Substances Act.  These contradictions negatively affect marijuana business owners all over the country by limiting access to banking and limiting the ways these companies can get insurance.  One of the many troubling aspects of this legal grey area is the business owner’s access to marijuana business title insurance.

What Is Title Insurance?

When a property is bought or sold, a record of that real estate transaction is immediately put into public archives.  This not only records the change of ownership but also records other significant events related to the property, whether it be liens or levies. Basically, title insurance protects the new owner from any pre-existing issues relating to the property.

When you order title insurance, the title company does a deep search of public archives on the property to find (and remedy, if possible) several types of ownership issues.  This process starts with a search of public record to determine the ownership status, and depending on their findings, the underwriter will then decide the insurability of title.  

Despite the title company’s ability to search public archives, even the most skilled underwriters will not find all problems associated with any given property.  With this comes several risks, including filing errors, forgeries, and undisclosed heirs to a property. These risks are often incredibly difficult to identify.

At closing, the title company provides an insurance policy to protect the owner from further risks that may be uncovered later.  In many instances, this insurance policy may save a new owner from losing their investment. Furthermore, this policy insures ownership rights to the property.  A title insurance policy is typically paid once up front but protects the owner for the life of ownership on the property. Think of it as buying peace of mind for your property.  

Marijuana Business Title Insurance Issues

Despite the near necessity of title insurance for business owners, including marijuana business owners, most title insurance companies are not able to work with a marijuana-related property. This means there is a missing aspect of the transaction since someone needs to act as an escrow agent, handle closing documents, handle the transfer of funds, and provide insurance. Many title insurance companies have a specific exception in states that have any type of legal marijuana laws in place.

Most title companies have taken a hard stance on marijuana properties, with some even instructing all underwriting agents not to insure properties if the property is, or ever has been, used as a marijuana facility.  This is not only affecting marijuana businesses but any business using property related to marijuana in its past. These restrictions can now impact transactions of undeveloped land, commercial buildings, and retail stores alike.  

What Can You Do to Protect Your Ownership Right?

If title insurance is not available because of your property’s status as a past, present or future marijuana facility, you have a few options.  Before purchasing the property, make sure to obtain a thorough title search, just as a title insurance company would do. This will uncover most title issues surrounding the property, and allow you to make strides towards a resolution before you take possession.  Additionally, you can negotiate for the seller to deliver a warranty deed. Warranty deeds provide the purchaser with a limited cause of action for any title defects.

As a marijuana business owner, you have to jump through additional hoops that others never have to think about.  Make sure you are taking all the possible actions to protect your property and investment.


About the Author:

Jackson White