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Three Common Questions When Conveying Title

by | Jan 29, 2021 | Real Estate Law |

1. Why does a deed need to include my marital status when I am trying to convey property?

From a public policy perspective, no one wanted a situation where the husband runs out on the family and sells the family homestead, leaving the wife and kids homeless and destitute. Therefore, policymakers determined that it was a good idea to require that an individual conveying property obtain the agreement of their spouse in order to convey property on which the individual and spouse (and their family) live.

When drafting a deed for an individual seeking to convey their title to property (known as the grantor), we typically include the marital status of the grantor in the first paragraph of the deed.  This means that we will describe a grantor that is not married as a single or unmarried person. Referring to an individual grantor as a widow, widower, or divorced person is also an acceptable means of indicating marital status though we prefer to use the single or unmarried designations. If the individual seeking to convey title is married, both that individual and their spouse will be included as grantors in the introductory paragraph of the deed and will typically be described as either husband and wife, wife and husband, or a married couple. Both spouses will then have to sign the deed.

There are occasions where a grantor is described as a married person and no spouse is listed or the marital status is entirely missing. In these cases, we can prepare affidavits to resolve the lack of marital status. If the grantor is a single person and the marital status was accidentally excluded from the deed, an affidavit of marital status can be recorded to indicate that the grantor was single at the time of conveyance. If the grantor was married but neither the grantor nor any member of their family lived on the conveyed property, then an affidavit of non-homestead can be recorded stating that no one in the grantor’s family lived on the property when it was conveyed. Finally, in North Dakota, if the deed that is missing marital status is more than twenty years old, it might be possible to use an affidavit of marketable title to resolve the marital status issue, while marital status missing from a deed more than forty years old might be able to be ignored in Minnesota. The next section has more information on resolving old defects in conveying instruments.

2. How do I resolve a defect in an old deed?

Sometimes a defect in an old conveying instrument like a deed prevents a present landowner from having good title to a property. Old title defects can be a real pain to resolve since the persons involved may be deceased or difficult to find. Fortunately, states have developed ways of resolving old title defects in order to create marketable title. We will examine the method North Dakota uses to resolve decades-old defects to title, as well as the method used in Minnesota.

In order to resolve title defects to a property greater than twenty years old, North Dakota allows an affidavit of marketable title to be recorded. The affidavit of marketable title must include the legal description of the property and must show that the landowner is in possession of the property interest. The affidavit must also have a root instrument greater than twenty years old. That means that in order to use an affidavit of marketable title there needs to be at least one deed without title issues followed by an uninterrupted period of at least twenty years up to the present of subsequent deeds (if any) without title issues or with previously resolved title issues. In North Dakota, the affidavit of marketable title can resolve most title defects that are older than twenty years, with a few exceptions, such as remainder interests held under a life estate.

On the other hand, Minnesota does not use affidavits of marketable title. Instead, a landowner’s property deriving from a good source of title recorded more than forty years before the present, is considered marketable. Therefore, resolving old title defects in order to get marketable title in Minnesota is both easier (no need to file an affidavit) and harder (requiring no breaks in a chain of good title for forty years). Minnesota also has its own set of exceptions to the forty-year rule for marketable title. For instance, the forty-year rule exempts property registered under Minnesota’s Torrens statute (there are very few Torrens title properties found in western Minnesota so we will not further concern ourselves with them), along with properties subject to an adverse possession claim by the landowner.

3. What is a title abstract and where can I, as a landowner, find my title abstract?

A title abstract is a document prepared and updated by a certified abstracter that summarizes the history of a specific parcel of land. This means that the abstract includes the original grant of the property, usually a patent from the United States, and all subsequent conveyances (such as deeds) and encumbrances (such as mortgages and easements). An examination of a title abstract allows an attorney to provide a written opinion as to the marketability of title to a particular property, which can be helpful when trying to obtain a mortgage or convey good title.

An abstract of title typically looks like a book of 14” x 8 ½” pages bound at the top with a cover page which describes the document as an abstract of title to a particular property. Certain properties might have both a base abstract and a supplemental abstract. Base abstracts in Clay County, Minnesota, often have a coupon book design instead of the 14” x 8 1/2” design.

Some landowners keep their title abstracts in safe place at home or in a lockbox at their local bank, but title abstracts are also commonly held for safekeeping at local abstract companies. The particular abstract companies doing business varies by county, but some local abstracting companies include the Clay County Abstract Company, Red River Title Services d/b/a Cass County Abstract Company, Traill County Abstract & Title Company, and TRN Abstract and Title.