Please note that Iowa subdivision law has not required the filing of the abstract since Chapter 409 was repealed in 1990.

I also have a concern with using a subdivision plat as the root of title, even if the plat is over ten years old, notwithstanding Title Standard 1.5 and Iowa Code 354.9. To rely upon a subdivision plat as a root of title, one must assume that all utility easements are identified in the platting title opinion and are picked up and reflected in the abstract, or are otherwise shown on the subdivision plat map. But, is this a fair assumption?

The information required to be disclosed in the title opinion provided incident to a subdivision plat is identified in Iowa Code Sec. 354.11(3) as follows:

3. An opinion by an attorney at law who has examined the abstract of title of the land being platted. The opinion shall state the names of the proprietors and holders of mortgages, liens, or other encumbrances on the land being platted and shall note the encumbrances, along with any bonds securing the encumbrances. Utility easements shall not be construed to be encumbrances for the purpose of this section.

Under the literal reading of this section, the title opinion provided for platting purposes must identify all encumbrances, but "utility easements shall not be construed to be encumbrances". I believe more than a few attorneys have construed this section to mean that utility easements, such as rural water lines and gas lines need not be addressed in the platting title opinion because utility easements are not encumbrances.

The problem is further complicated by the fact that local governments generally do not regulate utility easements upon private property or even know where such facilities exist. In the City of Des Moines, as is probably common in may jurisdictions, the plat maps are reviewed by a team of planners and engineers without benefit of ever seeing the platting title opinion. The platting title opinion is reviewed by the City Attorney or Legal Department without benefit of ever seeing the final plat map. An easement may appear on one document, but not the other and the discrepancy would never be noticed. Even if the utility easement appears in the title opinion, how often does the full text of the platting title opinion get reflected in the abstract?

IN SUMMARY: Is it reasonable to assume that all utility easements are identified in the platting title opinion and are picked up and reflected in the abstract, or are otherwise shown on the subdivision plat map?

Roger K. Brown, Assistant City Attorney
City Hall - Legal Department
400 Robert D. Ray Drive
Des Moines, Iowa 50309-1891
Phone: 515/283-4541
Fax: 515/237-1643
E-mail: RKBrown@dmgov.org

-----Original Message-----
From: realestate-owner@iabar.org [mailto:realestate-owner@iabar.org]On Behalf Of Mike Gabor
Sent: Wednesday, April 25, 2007 3:22 PM
To: Jason R.S. Cassady; Real Estate Listserve
Subject: RE: Abstract being with filing of plat (9-3-04)

I will simply say that there is not a plat for which at least one attorney in this office did not go and check out the root of title abstract in the courthouse. In other words, although we like to be able to trust the attorney who did the opinion for the subdivision, I think most of us make the walk or the call to review the original -- at least as to the first lot in that subdivision that comes through our respective offices.

Also, I don't see the issue as revising the title standards or altering them in any way. It is just saying to the client that they have a stub that may need to be expanded. The title has been reviewed from the root.

Mike Gabor

From: realestate-owner@iabar.org [mailto:realestate-owner@iabar.org] On Behalf Of Jason R.S. Cassady
Sent: Wednesday, April 25, 2007 3:06 PM
To: Real Estate Listserve
Subject: Re: Abstract being with filing of plat (9-3-04)

Mike, that is the first anyone has ever mentioned the existence of a permanent root abstract on file at the court house. If that is the case, why doesn't the abstracter send two abstracts - the root of title, which is then returned to and kept by the abstracter, and the new abstract for the customer, with the express statement that the root of title will be provided to an examining attorney upon request during the first 10 years of the plat's existence? That would allow them to have it both ways. I don't think I've seen one of these from Kossuth County though, only Black Hawk.

I guess my understanding to the local title standard is that we will all just trust the attorney who did the plat opinion. While I think that is fine and dandy, I know I've made mistakes in the past, and I've also found problems in abstracts which were missed by the examining attorney during platting, which was done less than 10 years before. I've also seen corrections from items missed that other attorneys obviously caught after the platting.

My understanding of the concept is that none of us are perfect, however, if we require that the plat not start the abstract until each lot has been sold (and in theory has been reviewed by an attorney), and ten years has past, thus eliminating pretty much all possible title issues through multiple attorneys' review and the statute of limitations passing.

I do agree with Ron Fadness - the standards are the standards. If you are an attorney in those counties, and you have additional standards you follow, I think that is your business, and I am not trying to interfere with that. However, this is not the world of 30 years ago - this is the secondary market world where abstracts are sent all over the state to attorneys to review. In my mind, the only way to protect my buyer from having exceptions arise when they sell, is to follow the same standards which I know will be followed by the next examining attorney.

Jason

Jason R.S. Cassady, Attorney at Law
Dougherty Law Firm
801 North Avenue
Norwalk, IA 50211
Phone: 515-981-5401
Fax: 515-981-5517

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Mike Gabor wrote:

In Kossuth County, by local practice, we all accept abstracts that start with the Plat -- even if it is one of record for less than 10 years. There is a permanent root abstract on file in the court house that is available if anyone wants to use it. The risk of continuing an abstract -- backwards -- for someone who won't accept it, is covered with the following opening paragraph in our opinions.

1. ABSTRACT FROM PLAT. Your attention is called to the fact that the abstract begins with the filing of the plat of on , by a local rule of the Kossuth County Bar Association. The remainder of the root of title abstract is of permanent record in the subdivision file for in the Kossuth County Courthouse. Title Standard 1.5 of the Title Standards Committee of the Iowa State Bar Association might be read to require that you possess a more extensive abstract because the plat is less than ten years old. In the event that you are required to establish title to the satisfaction of a buyer or lender who was relying upon a title examiner, not located in Kossuth County, you might be required to incur the expense of expanding your abstract to include the root of title. In our judgment, this is a calculated risk which you should be willing to take. Finally, you are advised that any requirement for expansion of the abstract will expire after the ten year period.

From: realestate-owner@iabar.org [mailto:realestate-owner@iabar.org] On Behalf Of William D. Bartine
Sent: Wednesday, April 25, 2007 2:32 PM
To: Jamie Bergkamp; Real Estate Listserve
Subject: RE: Abstract being with filing of plat (9-3-04)

It's a local custom of the Black Hawk County bar that has been accepted locally from time out of mind. The Title Standards Committee always shrugged its shoulders and moved on when the question came up, in part because our long-time chairman, LeRoy Redfern, practiced in Cedar Falls and argued passionately for the practice.

Bill Bartine

From: realestate-owner@iabar.org [mailto:realestate-owner@iabar.org] On Behalf Of Jamie Bergkamp
Sent: Wednesday, April 25, 2007 2:22 PM
To: 'Real Estate Listserve'
Subject: Abstract being with filing of plat (9-3-04)

I have a Black Hawk County Abstract that commences with the filing of the plat on September 3, 2004 at 11:00am.

Would anyone accept this as satisfying our marketable title act?

Thank you,

Jamie