title insurance underwriting - eondirect.com · indiana land title association ... deutsche bank v....

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by

Morrie Erickson, Attorney

Titleplus!

Subjects Covered Title, ownership & conveying

Easements & licenses

Mortgages, vendors’ liens & mechanic’s liens

Oil, gas & mineral rights

Federal tax liens

Judgment liens

Other liens

Indiana Land Title Association

www.indianalandtitle.org

Holding & Conveying Natural persons

Severalty

TICs & joint tenancies Presumption of TIC (IC 32-17-2-1)

Joint tenancies - survivorship

Tenants by the entireties (h&w)

Same-sex couples (DOMA - 1 USC Sec 7 & 28 USC Sec 1738C)

Adults

Minors



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Holding & Conveying (cont) Entities

Trusts & trustees (Trustees hold, per IC 30-4-1-1)

Personal representatives

Corporations (for profit & not-for-profit)

Partnerships (general & limited)

LLCs & LLPs

Unincorporated associations

Role of Secretary of State



Holding & Conveying (cont) Deeds

General warranty (IC 32-17-1-2)

Limited/Special warranty

Quitclaim (IC 32-21-1-15)

Trustees, PRs & Com’n’rs (“convey”)

Executed outside USA (IC 32-21-1-11)

Mailing address for tax bills (IC 32-21-2-3)



Holding & Conveying (cont) Recitations

Authority to sign for entity

Resolutions

Incumbency cetificates

POAs

Specific vs. general powers

Legal descriptions



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Holding & Conveying (cont) Recitations (cont)

Individual persons by POA (IC 30-5-8-7) Attorney-in-fact furnishes affidavit

Instrument relied on is true copy of POA

Named principal is alive

POA validly granted & executed

Relevant powers have not be altered or terminated

If successor attorney-in-fact, original failed or ceased to serve

If effective date commences on happening of specific event, that the event has occurred



Holding & Conveying (cont) Reference to recorded encumbrances

IC 32-21-1-17 (recording requirements)

Reference may be specific to each item

Reference may be general (“all conditions, covenants, easements & restrictions of record”)

IC 32-20-3-2 (Marketable Title Act)

Matters affecting title must be specifically stated on deeds to survive after 50 yrs



Holding & Conveying (cont) LW&Ts

Leases & Memos (IC 36-2-11-20)

Conditional sales contracts

Memos OK?

Contract deduction if Memo (IC 6-1.1-12-2)

Options

Rights of first refusal



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Holding & Conveying (cont) Pursuant to statute

Intestate succession (IC 29-1-2-1)

Marriage dissolution (IC 31-15-7-4)

Tax sale (IC 6-1.1-24-1 & IC 6-1.1-25-1)

Condemnation (IC 32-24-1-1)



Holding & Conveying (cont) Pursuant to statute (cont)

Bankruptcy (11 USC 363) Chapters 7, 11 & 13

Automatic stay

Personal liability vs. elimination of lien

Non-dischargeable debts

Sales

Pre-bankruptcy

During bankruptcy

Post-bankruptcy



Holding & Conveying (cont) Pursuant to statute (cont)

Adverse possession (IC 32-21-7-1 & IC 34-11-2-11)

Entity dissolution, merger, consolidation

Successor trustees



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Holding & Conveying (cont) By court order or judgment

Foreclosure

Protecting Tenants at Foreclosure Act (Title VII of PL 111-12, eff 5/20/09, exp 12/30/12)

Rights of redemption

Indiana

No sheriff’s sale for 3 mo after complaint filed (IC 32-29-7-3)

Can redeem until sheriff’s sale (IC 32-29-7-7)



Holding & Conveying (cont) By court order or judgment (cont)

Foreclosure (cont)

Rights of redemption (cont)

IRS liens (120 days after sheriff’s sale)

Agricultural Credit Act of 1987 (mandatory restructuring)

Resulting foreclosure judgment

In rem

In personam




Foreclosure (cont) Foreclosure-related

Short sales

Deeds in lieu

Sheriff’s sales

Strict foreclosure

Deutsche Bank v. Mark Dill Plumbing Co., 908 NE 2nd 1273 (Ind. App. 2009)

Citizens State Bank v. Countrywide, 922 NE 2d 655 (Ind. App. 2010)



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Marriage dissolution (IC 31-5-7-4) Title changes to TIC

Child support (IC 31-16-16)

Delinquent treated as judgment lien (IC 31-16-16-2)

Orders are lien if on judgment docket (IC 31-16-16-3)

Otherwise, unperfected secured creditor

Property settlement/division

Judgments against spouse (prior & marital)

Is decree a conveyance?




Successor trustee (IC 30-4-3-29)

Partition (IC 32-17-4)

Personal Representative (IC 29-1-15)

Guardian (IC 29-3-1)

Receiver (IC 32-30-5)

Execution (IC 32-29-7-1 & IC 34-55-6)

Bankruptcy trustee (11 USC 363)



Holding & Conveying (cont) Transfer on death deeds (IC 32-17-14)

Eff 7/1/09

Vests title in beneficiary when O dies

Specific requirements in format

O may revoke

Deed recorded before O’s death

No beneficiary rights before O’s death

O’s transfer of title to X ends TOD deed



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Easements Interest in land

Creation by document

Express grant

Reservation in deed

In writing to be enforceable (IC 32-21-1-13)

Describe dominant & servient estates

Recording requirements per IC 32-23-2-5



Easements (cont) Appurtenant easements

Run with land

Must have benefited & burdened parcels

Passes with transfer of each parcel

Example: driveway across adjacent parcel



Easements (cont) Easement in gross

Personal right to use another’s land

No benefited land

Does not run with the land

May or may not be assignable

Example: right to timber another’s land

“Commercial character” (IC 32-23-2) Electric transmission lines

Gas pipelines



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Easements (cont) Blanket vs. defined route

Negative (allowing unobstructed view)

Presumption of running with land

Unless determinable (temp. construction)

Even if not mentioned in later deeds (see Jeffers v. Toschlog, 383 NE 2nd 457)



Easements (cont) By prescription (IC 32-23-1-1 et seq.)

Implied

By necessity

Common scheme or plan

Termination Terms in document

Merger of dominant & servient parcels

Abandonment

Release



Licenses Personal right or privilege (hunting)

May be verbal

Revocable

Not assignable

Do not run with the land



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Mortgages Consensual lien (as is vendor’s lien)

1st/senior mortgages

Priority over prior judgment (IC 32-29-1-4) if purchase money mortgage

Non-purchase money

Construction mortgages & future advances

HELOCs & other juniors



Mortgages (cont) Expiration of mortgages & V/Ls

See IC 32-28-4

If maturity date (MD) shown and: Recorded 9/1/82 or >, 10 yrs after MD

Recorded <9/1/82, 20 yrs after MD

If no MD shown: 20 yrs after execution

20 yrs after recording if no execution date

But, <20 yrs, lien holder may file affidavit of MD



Mechanic’s Liens Non-conensual

See IC 32-28-3-1 et seq.

Residential property (“Class 2 structure”)

Single-family dwelling or duplex

Includes outbuildings

Notice to owner w/i 60 days after starting

Record lien notice w/i 60 days after finishing

Recorded deed to BFP cuts off recording deadline



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Mechanic’s Liens (cont) Commercial (“Class 1 structure”)

Most non-residential property

Record lien notice w/i 90 days of finishing

Filed by claimant or attorney

Release by claimant (not attorney) - IC 32-28-6-1

Public property

Lien lasts 1 yr after recorded

No-lien contracts (IC 32-28-3-1[e], [f ] & [g])



O&G & Minerals O&G leases affect title marketability

MTA: IC 32-20-3-1 et seq.

Salmon v. Perez, 545 NE 2nd 21

Surface & subsurface rights

Eliminating O&G leases (IC 32-23-8)

Eliminating mineral int. (IC 32-5-11)

Reservation of mineral int. & royalties



Federal Tax Liens Failure to pay taxes (26 USC 6321)

Filed in Recorder’s office

Last 10 yrs & 30 days from assessment

Redemption rights after public sale IRS has 120 days

Other federal creditors have 1 yr

IRS lien on 1 spouse attaches to H&W property



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Judgments Indiana

Final IN court judgments (IC 34-55-9-2) Lien starts when entered in “judgment docket”

Liens last for 10 yrs after rendition

PPTJs - same rules apply

IDOR tax warrants under IC 6-8.1-8-2 “Judgment record” in Clerk’s office

2011 addition of 180-day demand procedure

Query: does JTAC = “judgment docket”?



Judgments (cont) Federal

For money owed to USA

Lien lasts 10 yrs

Lien attaches to current & later r.e.

If recorded in Recorder’s office, lasts for 20 yrs, renewable for 20 yrs more

Not subject to PMM rule Unless Feds agree

IRS has agreed



Judgments (cont) Foreign (other states)

IC 34-39-4-1 et seq. Certified by other state or DC

Full faith & credit

IC 34-54-11-1 et seq. Filed in Clerk’s office

Judgment creditor must file affidavit

Name & last known address of judgment creditor

Name & last known address of judgment debtor

Notice & mailing requirements



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Other Liens Hospital (IC 32-33-4-1)

Perfected in Recorder’s office

Not lien against injured person’s r.e.

Lien against judgment won by injured person



Other Liens (cont) Weed removal (IC 36-7-10.1-3)

Prerequisite of ordinance for “weed cutting”

Notice & billing to owner at tax bill address

Amount certified to County Auditor

Added to tax bill sent by County Treasurer



Other Liens (cont) Municipal ordinance violations (IC 36-1-6-2)

Was “secret lien” under former statute

Now, lien perfected upon recording

Up to $2,500 - residential & unimproved

Up to $10,000 - commercial



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Other Liens (cont) Medicaid (IC 12-15-8.5-1 et seq.)

Recipient not expected to leave hospital

Filed against recipient’s real property

Unless spouse lives there

Unless child <21 lives there

Real property look-back “at least” 3 yrs




Other Liens (cont) Common law (IC 32-28-13)

Oxymoron (statute but common law?)

Procedure for filing & releasing

Legal basis of $$ owed for services pertaining to real estate


Similar to mechanic’s lien filing procedure

Void 180 days after recording unless lawsuit filed



Other Liens (cont) Ditch assessment (IC 36-9-27-89)

Lien against land assessed

Lien on date amount certified to County Auditor

Inferior only to “tax liens”

Lasts for 5 yrs after last payment became due



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Other Liens (cont) Environmental (IC 13-25-4-11)

Lien against real estate from which State cleaned up hazardous substances




Other Liens (cont) Inheritance tax (Indiana) (IC 6-4.1-8)

Lien attaches to property transferred to transferee

Tax accrues & lien attaches (is perfected) at decedent’s death

Lien last 10 yrs after decedent’s death



Other Liens (cont) Old age assistance (IC 12-14-16)

For aid given by public authorities


Perpetual lien against recipient’s real estate & other property



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Other Liens (cont) Surveyor, engineer & architect (IC 32-28-11)

Fees for professional services


Procedure & enforcement same as for mechanic’s liens



Other Liens (cont) Attorney (IC 33-43-4)

Fees for professional services

Lien against person attorney represented

Filed w/i 60 days after judgment entered or appellate decision

Perfected in judgment docket

Title agent may require attorneys to waive if real estate transaction w/i 60 days of marriage dissolution decree



Other Liens (cont) Lis pendens (IC 32-30-11)

Filed in Clerk’s office Lis Pendens Record

Notice of lawsuit pending against real estate

Title agent must require to be cleared or show as exception on Schedule B



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The End Morrie Erickson

Attorney/Owner TitlePlus!

Bloomington, IN

[email protected]



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