Top Title Defects – Cured – December 9, 2013 – Follow Up Post 3

One question from the audience was whether Personal Representative’s / Administrator’s deeds would be covered by the Simplification of Land Titles Act and the related Chapter 29 of the Title Examination Standards Handbook (TES) if they were done under Consents and Waivers under Okla. Stat. tit. 58 §§ 239-240 rather than under the sale confirmation process outlined by statute.  There is some ambiguity here, which could be solved clearly by a slight tweak to the TES or statues.  However, my opinion is that they are.  The language of TES 29.2(B) reads in part, “. . . personal representative’s conveyance approved or confirmed by the court . . .” (emphasis added).  In the Consent and Waiver process, the Personal Representative / Administrator obtains a Consent and Waiver from each heir, devisee, and legatee and then applies to the Court for an order.  The Court then grants an order authorizing a future transfer without additional permission or confirmation from the Court.  This is an “approval” from the Court – even if that exact language is not used in the statute.  An approval from the Court in advance under the consent and waiver process would fall under the “approved” side in the same way a confirmation of an estate sale falls under the “confirmed” side of the “approved or confirmed” language of TES 29.2(B).  There are some other general arguments that would bolster this as well.  Others may disagree, and I would welcome comments and thoughts either way.

Another question from the audience involved the possible blurring of a bright line rule regarding Attorneys- In-Fact.  In TES 6.7, specifically (A)(3), title examiners are authorized to accept an instrument executed by an Attorney-In-Fact, even if there is no Power of Attorney filed in the land records appointing the purported Attorney-in-Fact – as long as the instrument has been of record at least five years.  In the question, there was an instrument executed by an Attorney-in-Fact which had been recorded more than five years.  So far, so good.  The twist in the question comes in the fact that there had been an instrument filed after the five years, but before examination, in which the principal / grantor stated that the Attorney-in-Fact was never authorized to act on their behalf.  This is a tough call as well.  Which way a title examiner leans will depend on a couple of key issues.  Some examiners would lean toward a hard line reading of TES 6.7 and accept the prior instrument after it had been of record five years.    The logic here would likely focus on the fact that the principal / grantor should have noticed the problem and raised the issue long before the 5+ years.  Some examiners might not accept the instrument.  The logic here would likely focus on TES 1.1 and the overall standard requiring the title to be free from “apparent defects, grave doubts and litigious uncertainty.”  In their mind, even if the 5 year rule is technically right, you could be leading your client into a lawsuit or dispute at the very least, and a bad title at worst; therefore, the issue ought to be cleared up before the title is free from litigious uncertainty.

In addition to specific questions, a number of important topics were discussed more generally.  One area that generated a lot of discussion (and some splits of opinion) in my presentation on Estate, Trust, and Power of Attorney Issues, was the recent changes to the summary probate statues by the Oklahoma Legislature.  I will be writing more about that in future blogs and elsewhere.  (Let me just say in sum that, in my opinion, the new changes are not helpful and in fact create real issues for attorneys and judges – and of course the underlying clients.)  Another interesting area was the discussion of the use of Powers of Attorney and gifts.   

Thanks again to NBI and all the presenters and attendees for making the event interesting and helpful.

This blog contains general information and the opinions of the author – not legal advice; you should seek the advice of competent counsel (attorney/lawyer) when considering any legal issues.