| Root of Title and Patents | ||
|
----- Message from "Dean Konrardy" <dean.konrardy@kintzlaw.com>
on Mon, 18 Dec 2006 12:49:48 -0600 -----
|
To:
| "Jason R.S. Cassady" <jcassady@doughertylawfirm.com> |
|
cc:
| "Real Estate Listserve" <realestate@iabar.org> |
|
Subject:
| Re: Root of Title and Patents |
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Jason R.S. Cassady wrote:
> We recently reviewed a new root of title abstract in a rural county
> which did not include a Patent. Based upon Title Standard 11.7
and Iowa
> Code Section 614.36, we called the abstracter and asked for the patent
> to be included. We received a fax from the abstracter stating
that they
> did not find a patent and "sometimes patents were not recorded
in this
> county so for this reason we do not include patents in our abstracts."
>
> In our title opinion, we required the seller to file a copy of the
> patent, or provide us with a copy prior to closing. We have
since
> received a letter from the seller's attorney (whose office is also
an
> abstract company in a neighboring county), asking us to waive our
> requirement pursuant to Title Standard 1.1.
>
> While we acknowledge that the likelihood of litigation is remote from
> the government, we are not certain that this is something that is
a
> title objection so much as it is a defect in the abstract for not
> meeting the definition of a root of title.
>
> We read Section 614.36 to mean that any "right, title or interest
of the
> United States" is still in full force and effect. So, failure
to convey
> would leave the government the true owner, or any restrictions placed
on
> the original conveyance would still be in full force and effect.
>
> By the last sentence in the comment of Title Standard 11.7, states
that
> an abstract which is a root of title abstract "will show the
patent".
>
> The question we want answered is how other attorneys feel about the
lack
> of a Patent in relation to Title Standard 1.1. Is this something
that
> can be overlooked as a remote issue not likely to cause litigation,
or
> is the abstract defective in that it does not represent a true root
of
> title abstract?
>
> I've included Section 614.36 and Title Standard 11.7 below for anyone
> who doesn't want to look them up.
>
> Thank you in advance!
>
> 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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> --------------------------------------------------------------------
>
> Section 614.36 Lessors, reversioners, and easements.
>
> This chapter shall not be applied to bar any lessor
or lessor's
> successor as a reversioner of the lessor's right to possession on
the
> expiration of any lease; or to bar or extinguish any easement or
> interest in the nature of an easement, the existence of which is
> apparent from or can be proved by physical evidence of its use; or
to
> bar any right, title or interest of the United States, by reason of
> failure to file the notice herein required.
>
>
> Title Standard 11.7
>
> Does the Marketable Title Act affect the length of the
record title
> chain for which all matters affecting the title must be shown by the
> abstract?
>
> STANDARD:
>
> Except as to matters which are excepted from the operation
of the
> Act under Iowa Code § 614.36, the abstract need extend no further
beyond
> forty years from the present time than is necessary to show the “root
of
> title.” Beyond this point search should be confined to those
interests
> excepted from coverage by the Act (i.e., rights of reversioners under
> leases, claims of the United States and easements which are apparent
> from or can be proved by physical evidence of their use). It
is the
> purpose of the Marketable Title Act to make the use of “forty-year
> abstracts” standard throughout the state.
>
> COMMENT:
>
> A major purpose of the Marketable Title Act is to limit
the
> examination of the record title to a relatively modern period, as
> reflected in the forty-year chain requirement. Consistent with
this
> shortening of the period of title examinations is the intent to reduce
> the record search and shorten abstracts. In all cases, the abstract
> must go back to the conveyance or other title transaction which is
the
> “root of title”. It will rarely occur that this instrument
was recorded
> precisely forty years prior to the present time. In nearly every
case
> the period from the recording of the “root of title” to the present
will
> be somewhat more than forty years. For example, E wishes to
have an
> abstract of title showing the forty-year title required to make title
> marketable under the Act. The only instruments of record are
the
> following: (1) A patent from the United States to A recorded
in 1900;
> (2) a deed from A to B recorded in 1910; (3) a deed from C to D recorded
> in 1962; and (4) a deed from D to E recorded in 1990. In 2003
the deed
> from C to D is the root of title since it is the last instrument
> recorded forty years or more prior to the present time. Thus,
the
> abstract will show the patent, to extinguish the original claim of
the
> United States, and then start with the deed from C to D.
>
>
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