Tennessee Administrative Office of the Courts

Vetting the House: Resolving [Mediating] Real Property Issues & Preventing Ethics/Malpractice Claims in Divorce, Trusts/Estates, and Elder Law By Enhancing Due Diligence for Informed Decision-Making

Date / Time: 
May 5, 2012 - 8:00am - 3:00pm
Event Type: 
Mediation Courses

Real Property 101
1. Differentiate Joint Debt (joint & several liability) from Joint Ownership (compare and contrast types of joint ownership: Tenants in Common, Joint Tenants with Right of Survivorship; Tenants by the Entirety – identify which include or exclude right of survivorship (RoS) and define RoS; distinguish impact of divorce and deeds changing form of ownership from conveying title/transferring ownership; 2. Distinguish Quitclaim deeds from other deed types/conveying instruments and define “vesting” and “divesting” title; 3. Compare chain of title and marketable title; define liens; explain “clouded title” from liens; confirm impact of liens on house equity calculation 4. Review TN cases/common law definition of Insurable Interest and contrast with more restrictive contract language used in house insurance policies.

1.0 Hour of General Continuing Education or Family Law

Ethics of Informed Decision-Making by H/W for Mediation of Divorce Real Estate
Comparing the Ethics requirements of TN S. Ct. Rule 31 Appendix A re: neutral assisting parties in identifying issues and reaching voluntary agreements as well as fairness, full disclosure, self-determination (informed/voluntary decisions) and TRPC 1.1 (Competence) 1.2(a) Scope of Representation, 1.3 (Diligence) 1.4 (Communication) 2.1 (Advisor) 2.4 (Lawyer as Dispute Resolution Neutral) that already mandate enhanced Real Estate Due Diligence (re: mortgage, title, liens, insurance/CLUE reports, condition) to help lawyers and mediators anticipate problems, foster informed decision-making, and prevent real estate and financial mistakes – especially those that cannot be fixed after divorce (given permanence of MDAs and property division).

1.0 Hour of Family Law or Mediation Ethics

TN Malpractice re: Real Estate Issues
Exploring real estate malpractice cases (including divorce cases) from TN and nationally to identify common pitfalls (failed mortgage refinance, limits of hold harmless provisions, hidden liens, default/foreclosure). Common malpractice claims – that can be prevented during mediation with more real estate information - include: failure to identify liens, insurance (beneficiaries), legal/financial consequences of joint debt &/or joint title after divorce; inadequate investigation [uninformed H/W decision-making] of asset value/liabilities (incomplete real estate due diligence); inadequate financial settlement; and failure to effect a division of title to real property (either failing to prepare quitclaim deed or failing to record deed or divorce decree/MDA). This section also addresses the impact of legal malpractice on voluntary/informed decision-making by parties during mediation of real estate issues.

1.0 Hour of Family Law or Mediation Ethics

Real Property Information (RPI) Sheet
Preventing malpractice & enhancing Real Estate Due Diligence & Voluntary, Informed Decision-Making through RPI sheet/real estate enhancements to mediation engagement letter (suggesting: lien/title search; mortgage consultation; insurance consultation/C.L.U.E. report; home inspection) additions to MDA regarding real estate facts (title, property tax status, Homeowners Association Dues status, title insurance, transferring title via quitclaim deed or divorce decree/MDA, lien evidence, mortgage documents/information).  To facilitate parties’ voluntary and informed decisions regarding House Value and House Disposition (whether to keep or sell the house), Mediators must understand the legal and financial impact of real estate due diligence that is mandatory when buying a house but is often excluded from divorce real estate when keeping the house.

1.0 Hour of Family Law, General Mediation Issues or Mediation Ethics

Real Estate Panel & Question/Answer Session
Re: divorce mediation mismanagement of real estate and preventing potential malpractice/ethics claims. Panelists (Judges (pending confirmation); Bankers, Mortgage Bankers; Title Insurance; House Insurance) will discuss what they see going wrong in judicially approved MDA’s re: divorce real estate (mortgage, title, insurance issues). Panelists and Keynote Speaker will also answer questions from attendees.

1.0 Hour of Family Law, General Mediation Issues or Mediation Ethics


Embassy Suites
1200 Conference Center Boulevard
Murfreesboro, TN 3712935° 51' 46.638" N, 86° 26' 56.3712" W