legal realestate-based on book info attached - ***VERY BRIEF..BUT NEED IN 1 1/2 HOURS***

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Chapter 12

Title Examinations

Objectives

  • After reading this chapter, you should be able to
  • Recognize the importance of title examinations.
  • Explain the three types of recording statutes.
  • Understand the process and procedures involved in conducting a title examination.

Objectives

  • After reading this chapter, you should be able to
  • Review a title examination report.
  • Identify potential title problems and know how to solve them.

Bona Fide Purchaser for Value Rule

  • Rule
  • Anyone who purchases property in good faith for valuable consideration and without notice of any claim to or interest in the property by any other party is a bona fide purchaser for value
  • Takes property free and clear of any claims to or interest in the property by other parties

Bona Fide Purchaser for Value Rule

  • Bona fide purchaser for value receives ownership of real property subject to any and all claims of which the bona fide purchaser has actual or constructive notice
  • Actual
  • Purchaser has direct knowledge about title matters
  • Constructive
  • Presumption of law to be responsible to know all title matters about the land

Bona Fide Purchaser for Value Rule

  • Constructive notice
  • For possession to constitute notice, it must be
  • Open
  • Notorious
  • Exclusive
  • Chain of title

Recording Statutes

  • Give purchasers and the public notice of changes in ownership of the property
  • Protect subsequent purchasers and encumbrancers of property from the same common grantor by giving them notice of information contained in the recorded documents
  • Determine priority among conflicting claims to real property

Recording Statutes

  • Three types
  • Race
  • Priority between successive grantees of the same land from a common grantor is determined by who records first
  • Notice
  • Relies on the notice given by the recording of the instrument or on the notice obtained through means other than recording
  • Race-notice
  • Most common

Recording Statutes

  • Race-notice
  • Combines the notice principle that knowledge of a prior unrecorded instrument serves as notice in the same manner as the proper recording of the instrument with the recording principle that the first party to record an instrument has priority of title
  • Regardless of whether that person was a prior or subsequent purchaser

Recording Statutes

  • Race-notice
  • Case
  • City of Richland Hills v. Bertelsen, 724 S.W. 2d 428 (Texas 1987)
  • Pleadings did not prove Bertelsen had either actual or constructive notice to city's claim

Practice Tips for Ordering a
Title Examination

  • Primary purpose of title examination to ensure either
  • That the seller has the ability to convey good title to the purchaser at the time of the closing, or
  • That the borrower has good title to the property being pledged as security for the loan

Practice Tips for Ordering a
Title Examination

  • Information needed to do an examination
  • Legal description of property to be examined
  • Name of current owner
  • Copies of all deeds and surveys
  • Or any prior title examinations or title insurance policies that affect the property

Examining Title to Real Property

  • Place to search
  • Courthouse in the county where the property is located
  • Period of examination
  • Title examination searches the owner's chain of title by starting at the present time and working backward to some predetermined point

Examining Title to Real Property

  • What to search
  • Chain of title
  • Grantor and grantee indices
  • Plat index
  • Land lot and district (location designation)
  • Name of owner designation
  • Subdivision designation

Examining Title to Real Property

  • Reviewing various instruments in chain of title
  • The examiner usually
  • Notes the identity of the parties to the instrument, the date the instrument was signed, and the date it was filed
  • Examines the signature and witnessing requirements

Examining Title to Real Property

  • The examiner usually
  • Makes a notation of what estate was being conveyed
  • E.g., fee simple, life estate
  • Pays particular attention to any covenants or other requirements that may be set out in the instruments

Examining Title to Real Property

  • Other items to examine
  • Judgments
  • Federal and state tax liens
  • Delinquent taxes
  • Uniform Commercial Code (UCC)

Examining Title to Real Property

  • Other items to examine
  • Lis pendens
  • Notice of a pending lawsuit
  • Civil suits
  • Probate court records
  • Mechanics’ liens

Examining Title to Real Property

  • Preliminary title report should reveal
  • The name of the current record title holder
  • The legal description of captioned property
  • Existing unpaid loans or mortgages
  • Other lien holders
  • Status of taxes

Examining Title to Real Property

  • Preliminary title report should reveal
  • Listing of all easements, covenants, and other restrictions
  • Any objections to marketability
  • Other matters that affect title
  • Requirements for vesting marketable title in the purchaser

Title Defect and Problems

  • Record title holder
  • May require suit to “quiet title” if title is not clear
  • Breaks in the chain of title
  • Errors in prior recorded deeds
  • Name variances
  • Improper and missing power of attorney

Title Defect and Problems

  • Sales contracts, options, and leases
  • Unsatisfied or unreleased mortgages
  • Notice of lis pendens
  • Easements
  • Restrictive covenants and conditions
  • Mechanics’ and materialmen's liens

Title Defect and Problems

  • UCC financing statements
  • Judgment liens
  • Tax liens
  • Title through estates

Role of the Paralegal and
Practice Tips

  • Paralegals may perform a title examination, order a title examination, and/or review the results of a title examination
  • Paralegals are underused in the area of title searching
  • Perhaps due to concerns about unauthorized practice of law

Role of the Paralegal and
Practice Tips

  • Title examination involves studying the actual copies of all the documents in a package, including the following:
  • Liens
  • Mortgages
  • Restrictive covenants
  • Easements

Record Rooms and
Electronic Records

  • Most land records offices have converted (or will be converting) to electronic databases
  • Many states have enacted the Uniform Real Property Electronic Recording Act
  • Allows for the recording of electronic documents involving real property
  • E.g., deeds, mortgages, easements, etc.

Checklist: Ordering or Performing a Title Examination

  • Purpose of examination
  • Purchase and sale of property
  • Mortgage loan transaction
  • Acquisition of easement
  • Lease transaction

Checklist: Ordering or Performing a Title Examination

  • Items required for examination
  • Current owner's name
  • Legal description of property to be examined
  • Plats or survey of property to be examined
  • Prior title insurance policies on property to be examined
  • Prior title examinations or abstracts on property to be examined

Checklist: Ordering or Performing a Title Examination

  • Period of examination
  • Full examination
  • 50 to 60 years
  • Limited examination
  • From date of prior title policy
  • From date of prior mortgage
  • From date of prior title examination

Checklist: Ordering or Performing a Title Examination

  • Indices to be checked
  • Plat index
  • Grantee index
  • Grantor index

Checklist: Ordering or Performing a Title Examination

  • Other records to be searched
  • Judgment index and records
  • Federal and state tax lien index and records
  • Lis pendens
  • UCC financing index
  • Tax records

Checklist: Ordering or Performing a Title Examination

  • Other records to be searched
  • Special assessments
  • Sanitary and water
  • Probate records
  • Civil docket

Checklist: Ordering or Performing a Title Examination

  • Preliminary title examination
  • Certification to title company if title insurance is involved
  • Copies of all title exceptions
  • Title defects or problems
  • Breaks in chain of title
  • Errors from prior recorded deeds
  • Name variances

Checklist: Ordering or Performing a Title Examination

  • Title defects or problems
  • Improper or missing power of attorney
  • Sale contracts, options, and leases
  • Unsatisfied or unreleased mortgages or deeds of trust
  • Notices of lis pendens
  • Easements
  • Restrictive covenants and conditions

Checklist: Ordering or Performing a Title Examination

  • Title defects or problems
  • Mechanics’ or materialmen's liens
  • Tax liens
  • Unpaid real estate taxes or assessments
  • UCC financing statements
  • Title through estates
  • Judgment liens

Ethics: Document Falsification

  • Paralegals should never be involved in falsifying a document for any reason
  • Failure to list all utility easements in a title examination report makes the report misrepresent record title to the property
  • Could be considered falsifying a title examination report

Summary

  • Importance of bona fide purchaser and mandate to record any conveyance in real property interest
  • Title examination procedures
  • Importance of the grantor/grantee indices and other indices, such as for judgment, federal tax liens, and unpaid taxes