Title Tips by Tute
Volume 3, Number 3
As the summer comes to a close, and Labor Day approaches, Tute is reminded that school will soon be open. Given the immense variety and complexity of the questions presented during the last year, Tute thinks it might be of interest if a few columns dealt with elementary title examination processes. As always, if I am wrong, don't hesitate to advise The VLTA Examiner.
This information may become obsolete as the Circuit Court Clerks are in the midst of a task force examining the feasibility of "modernizing" their records. How is that likely to effect you? It is not outside the realm of the possible that within five years you will perform title examinations from your office, rather than in the Clerk's Office. The combination of remote access and imaging technology eliminates the necessity for you to physically enter the Clerk's Office. When that day comes, your questions may require a columnist with an advanced degree in computer science, instead of an old fashioned dusty book examiner like Tute. Even if the procedures and methods of title examination change, the basic principles should survive the transition to the "information superhighway."
Title Examination 101 -- Starting the Title Examination
Tute will not repeat the embarrassing story that arose from Tute's first day as a title
examiner.1 Attention to these few humble words may, however, prevent you, or someone you train, from following "precisely" in those
The first requirement of performing a title examination is to get some concept of the property you are supposed to be examining. In order to do this, your employer or customer must give you some information. In most cases, this
will be information from the sales contract for the transaction contemplated, an instrument written by real estate agents. As a result, there are no significant "indicia of reliability" about the information you were given. How do you take that information and use it to access the public records?
Most real estate contracts, particularly for residential properties, describe property with a street address, and perhaps an abbreviated property description. Thus you are presented with a contract that says John and Mary Jones are the sellers, and the property is located at 101 Main Street, in Our Town. You may also have a description of "Lot 1, Block 1, Founder's Subdivision." Rarely, if ever, is the seller's source of title contained in the contract.
To obtain that information, and gain entry into the information contained in the Clerk's Office is your first challenge. One option is that the sellers will provide a copy of their recorded deed. That is not, in my experience, all that common. Today, the information is most often obtained by calling the Commissioner of the Revenue, and asking for the source of title for the property located at that address. Examiners should be aware that answering questions from title examiners is not a statutory duty of the Commissioner, and is probably something of a burden for that office. Be appropriately thankful if the Commissioner maintains that information, and is willing to share it.
In those cases where the Commissioner is not, there are alternatives. With individual sellers, the personal residence is frequently the only property owned by the seller. The Commissioner is charged by statute to maintain what is called the "land book." Most of the land books are organized alphabetically, and contain an entry for the most recent deed. This is a recent development (historically speaking), and it is possible that the Joneses acquired the property before the Commissioner began collecting and printing that information.
Most Commissioners maintain a "tax map" of the jurisdiction in their offices. Some of these have street addresses, names and dates, and parcel identification numbers. If your customer neglected to provide you with the name of the seller, this may be one way to both obtain the name and the source deed information. If the map does not contain the information, you may be able to find a land book printed on a "parcel number" basis rather than alphabetically, and obtain the information in that publication. In other offices, computer access is provided, and a search on parcel number will provide the needed information.
If computers are involved, the Treasurer usually has access to the same information as the Commissioner. As noted above, these governmental offices are not charged with assisting title examiners, so be grateful when they do assist you.
What if the Joneses acquired title before the Commissioner or Treasurer started keeping records of the source of title? With any luck, you have confirmed that the Joneses are paying taxes on a property located at 101 Main Street, and you have the parcel number for it. You now have some "indicia of reliability" that you will be searching the title to the right property, but you still don't know when or where the sellers acquired title.
At this point the modern conveniences must give way to the historically proven methods of finding source deeds. One such method is through the use of the grantee index. Beginning with the most recent volume of the grantee index, search for entries in which Jones acquired title. Why the most recent, when our problem is that the Commissioner has no record, and we're looking for something prior to the date the records were started? Two reasons, one of which is very compelling. Commissioners of Revenue are human, and computers are computers. The acquisition might be so recent it was not entered in the Commissioner's records yet. (I am willing to admit this is unlikely in a modern jurisdiction where the name is already appearing in the land book.) The data may be in the computer, but is not appearing for some reason that I cannot even begin to guess (typing error in entering data, new data entry person who didn't know they were supposed to enter that information, wiped out by power surge, are just a few possibilities). More importantly, if you never find it, you need to be able to tell your customer you checked all the records, even if logic tells you that it won't be there because it predated all the "modern" records.
Another possibility is that the property was not acquired by deed at all, but by inheritance. In that case, you should move to the indices for wills and lists of heirs. Again, starting with the most recent entries, go back in time to the period which common sense tells you must be correct. Be sure to check in both sellers' names. It is possible the property is vested in only one of them, a minor detail which the real estate agent did not investigate.
Since the oldest person in America is just over 100 years old, if you don't find an acquisition since 1897, it is possible nothing is recorded. It is equally possible that you still aren't searching the correct name. Your search of the grantee indices should have revealed any orders changing a name to that of your sellers. Look for instruments vesting title in the former name of that person. Inquire of your customer if the property was acquired by Mrs. Jones prior to marriage, and what was her maiden name. If you don't want to admit to your customer that you can't find the deed, a review of the marriage licenses for the jurisdiction may provide that information. In our present transient society, this is a less reliable possibility than it once was.
One other possibility is that the Clerk's indices are incomplete, and the instrument you are looking for is one entry that is missing. Switch gears and prepare to do some digging. If you know where the subdivision plat is recorded, look at it and obtain the subdivider's name. Move to the grantor indices for the subdivider of the subdivision. Begin to review all conveyances from the subdivider until you find a conveyance of Lot 1 to the Jones. "Eureka," as the ancients would say. (At this point, you should verify that the grantee indices are in fact incomplete, and if so, you can request that the Clerk insert the data. Again, it is my experience that more often than not it was my mistake, and not the Clerk's, but there are a number of corrected indexes and/or indexing notes that suggest Clerk's error is not as rare as it could be.) If the subdivider's conveyance is not to Jones, then continue running the grantor indices in the name of the buyer forward, repeating the process as necessary, until you find a conveyance into Jones.
Once the deed to the sellers is found, the examiner constructs the "chain of title." This is the series of conveyances which transfer title from one owner to the next until reaching the current owner. In Virginia, the customary period for examining title is 60 years, if title vests with a general warranty deed at that point. The chain should extend that far back in time. In many jurisdictions, "it being" clauses assist the examiner in creating the chain. In a few, such clauses are the exception, rather than the rule, and the examiner must repeat the process outlined above to establish each link in the chain.
Once the chain is completed, the examiner has established the ownership of the property. Examiners should be aware that in those areas where the land has been occupied and developed for more than 60 years, the search may need to be for a longer period. A residential development created in 1910 probably had restrictions. A 60 year search in 1997 is not likely to find them.
Next time, we'll discuss adverse conveyances, other indices that are examined, and finding the encumbrances that effect the title.
P.S. As this is written, there has been only one entrant in the "Dates to Remember" quiz from the last issue, despite the VLTA's generous offer of a cash prize. What is wrong -- was it too easy?
Webmaster's Note: No cash prizes in
the internet version of the quiz!!
1 However, if you have an embarrassing first day as a title examiner story that you would like to share with the rest of us, please send it to our association's esteemed executive director, Margaret
Webb (who is not a title examiner, and thus will not know enough to laugh; and besides, she is entirely too nice to do so.)
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2 Unless, of course, you wish to write this column, or your trainee has aspirations of writing this column, in which case you (they) have to make every mistake in the book before assuming the mantle of
Tute, the Unknown Title Examiner.