M E M O R A N D U M. 46:3-2. Certain tenures and holdings turned into free and common socage (now 46A:3-1b.)

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1 To: Commission From: Staff Re: Property Chapter 3 Date: September 7, 2010 M E M O R A N D U M This memorandum contains a first pass through Chapters 3, 3A, 6, 7, 10 and 11 of Title 46 pertaining to property. The language of this draft is rough and preliminary in form. Much of the language in several of these chapters predates 1898, and is recommended for repeal or substantial modification as indicated below. The more recent language is from 1951 and 1953 and it is anticipated that this language will also be substantially modified. Research regarding the issues raised by this Chapter is ongoing, however, and it is anticipated that there will be further additions and deletions as supported by the results of that research. I. Existing language included for purposes of comparison The following three excerpts from Chapter 3 contain the language of the current statute. They are provided for comparison to the draft language that follows. 46:3-1. Feudal tenures abolished (now 46A:3-1a.) The feudal tenure estates, and the incidents thereof, taken away, discharged and abolished from and after March twelfth, one thousand six hundred and sixty-four, by section two of an act entitled An act concerning tenures, passed February eighteenth, one thousand seven hundred and ninety-five, [FN1] shall so continue to be taken away, discharged and abolished; and no such estate, or any incident thereof, shall, at any time, be created in any manner whatsoever. [FN1] Rev.1877, p. 165, repealed. (Source: L.1898, c. 232, 10, p. 673 [C.S. p. 1537, 10].) 46:3-2. Certain tenures and holdings turned into free and common socage (now 46A:3-1b.) The tenures of honors, manors, lands, tenements, or hereditaments, or of estates of inheritance at the common law, held either of the king of England, or of any other person or body politic or corporate, at any time before July fourth, one thousand seven hundred and seventy-six, and declared, by section three of an act entitled An act concerning tenures, passed February eighteenth, one thousand seven hundred and ninety-five, [FN1] to be turned into holdings by free and common socage from the time of their creation and forever thereafter, shall continue to be held in free and common socage, discharged of all the tenures, charges and incidents enumerated in said section three. [FN1] Rev.1877, p. 166, 70, repealed. (Source: L.1898, c. 232, 11, p. 674 [C.S. p. 1537, 11].) 1

2 46:3-18. Aliens; alien friend defined; right to acquire, hold and transfer real estate (now 46A:3-8) Alien friends shall have the same rights, powers and privileges and be subject to the same burdens, duties, liabilities and restrictions in respect of real estate situate in this State as nativeborn citizens. Any alien who shall be domiciled and resident in the United States and licensed or permitted by the government of the United States to remain in and engage in business transactions in the United States, and who shall not be arrested or interned or his property taken by the United States, shall be considered an alien friend within the meaning of this act. Nothing contained in this section shall be construed to: a. Entitle any alien to be elected into any office of trust or profit in this State, or to vote at any town meeting or election of members of the Senate and General Assembly, or other officers, within this State, or for Representatives in Congress or electors of the President and Vice- President of the United States; or b. Prevent the sequestration, seizure or disposal by either the State or National government of any real estate or interest therein so long as the same is owned or held by any alien, made pursuant to duly enacted legislation, during the continuance of war between the United States and the government of the country of which any such alien is a citizen or subject; but any bona fide conveyance, mortgage or devise made by such alien shall be valid, if made to a citizen of the United States or to an alien friend. (Source: Amended by L.1943, c. 145, p. 395, 1, eff. April 8, 1943.) II. Revised language from Chapter 3 46A:3-1. Historic landholdings and transfers of interest in real estate a. The feudal tenure estates and incidents thereof remain abolished. b. Tenures of honors, manors, lands, tenements, or hereditaments, or of estates of inheritance at the common law declared by Rev. 1877, p. 166, Sec. 70 to be holdings by free and common socage shall continue to be so held. c. All transfers of manors, lands, tenements or hereditaments, made prior to July 4, 1776 are deemed to be held in free and common socage. d. This Title does not take away or discharge any rights or liabilities incident to tenure in common socage created prior to July 4, 1776, now due or to grow due. e. The rule of the common law, known as the Rule in Shelley's Case, shall not be applicable to any interest in property created by any instrument to take effect after Source: 46:3-1; 46:3-2; 46:3-3; 46:3-4; 46:3-14. This section contains streamlined and consolidated language from the source sections as follows: a. is taken from 46:3-1; b. is taken from 46:3-2; c. is taken from 46:3-3; d. is taken from 46:3-4; and e. is taken from 46:

3 It is not clear whether or not the following terms need to be retained or defined in this chapter (all references to the appearance of these terms in cases are based on searches of the Westlaw New Jersey database): 1. allodial (land that is absolute property of the owner; not subject to any rent, service or acknowledgement to a superior) Allodial is mentioned in 13 cases, the most recent case was in 1953 and the earliest is a US Supreme Court case from The two most recent New Jersey cases (1953 and 1950) included on the list cited the same 1884 language stating that in personal estates, which are allodial by law, the King is the last heir where there is no kin (the cases involved property escheated to the State). The United States Supreme Court explained that [a]s to the character of the tenure of land in this country since the Revolution, it has been said that it has become allodial. That is all true, but it must be remembered that at the date of the commencement of these tenures all land in Maryland was held as essentially feudal. Shoemaker v. U.S., 147 U.S. 282, 296 (1893). The Encyclopaedia Britannica explains that, following the French Revolution (1789), all land in France became allodial but in England, although land is not referred to as allodial, an estate in fee simple corresponds in practice to absolute ownership. In Encyclopaedia Britannica. Retrieved July 1, 2010, from Encyclopaedia Britannica Online: topic/16507/allodium A preliminary review of old New Jersey cases seems to suggest that allodial title is different in nature from feudal title as follows: it is a fundamental principle of the common law, that all lands, even those of private men, are held of the king. Where there is no private owner, therefore, all persons must claim title through him. 2 Black. Com. 49, 50. In respect to the old settled and granted lands in England this may be a fiction of law, but it is truth and history here. It was a newly discovered wilderness, conquered by the king of England; it was his from necessity, and belonged to him solely, substantially, and beneficially. Thus, being the lord and owner of the land, shores, rivers, bays, and waters, he conveys to the duke of York as fully and amply as he held them, except only that his title was allodial, the duke's feudal, in free and common soccage. Arnold v. Mundy, 6 N.J.L. 1, 35 (N.J. 1821). Staff will complete the research on this issue to clarify the usage of the term in New Jersey, but based on Staff research to this time, the term does not appear to be in current usage. 2. attornment (consent by tenant to alienation of estate to receive new lord or superior) 3. conveyance (a means or way of conveying) 4. devise (give real estate by will) 5. distresses (something distrained; a seizure and detention of goods as a pledge or to obtain satisfaction) 6. hereditaments (heritable property; any property corporeal or incorporeal, real, personal or mixed, that may descend to an heir) 7. socage (tenure of land held by a tenant in performance of specified services or by payment of rent, not requiring military service) Socage is mentioned in 32 cases, the most recent case was in 1949, and the earliest provided was a US Supreme Court case from In re Rollins, 65 A2d 667 (N.J. Co. 1949) includes a brief reference to socage tenure in its discussion of guardianship proceedings for an incompetent. Graham v. Houghtalin, 79 N.J.L. 342 (N.J. Err. & App. 1863) contains a brief discussion of guardians in socage in the contest of an ejectment action. Based on Staff research to this time, the term does not appear to be in current usage. 8. tenure act, right, manner or term of holding something Staff will continue its review of the history and most recent usage of the terms in New Jersey in order to assess the need to include these terms in the revision of the statute. It appears that if the reference to the Rule in Shelley s Case will be retained, it is more helpful to include a brief description of what the Rule is, rather than simply referring to it by name. 46A:3-2. Transfer of interest in property a. Any individual who holds an interest in real estate in fee simple may transfer any part of the interest he or she holds at any time and the recipient shall hold the real estate free of any tenure or service to the transferor. b. A transfer of any estate of inheritance by the State, the legislature or other lawful and competent authority under the state shall be allodial. 3

4 c. Every transfer of real estate or of the rent derived therefrom shall be valid without the consent of the tenant, but a tenant who paid the rent to the grantor before notice of the transfer shall not suffer any damage by that payment. Source: 46:3-5; 46:3-6; 46:3-8. This section contains streamlined and consolidated language from the source sections as follows: a. is taken from 46:3-5; b. is taken from 46:3-6; c. is taken from 46:3-8. Subsection a. may require revision to state that a transfer of fee simple allows restrictions and limitations as permitted by law (including the constitutions, statutes and case law). It is not clear what perpetual restrictions may be placed on a deed. The language may be revised to state simply that one who has an interest in land may transfer that interest, or any piece of it, however one wants. Subsection b. sounds like it is referring to nothing more than fee simple that will be determined by Staff and a determination will be made regarding the reference to an estate of inheritance. Old case law language suggested that the two were not identical as follows: determine whether the grants by the state to the United Companies conferred an estate that is properly to be called a fee simple, or whether such estate is free from any semblance of feudal tenure, so as more properly to be called allodial. Jersey City v. State Board of Assessors, 75 N.J.L. 571, (N.J.Err. & App. 1908); See, also, Kapiolani Estate v. Atcherley, 238 U.S. 119, 127 (U.S. 1915) (characterizes a transfer of title to land in fee simple as a freehold estate less than allodial ). It is not yet clear whether an easement renders the character of the interest not allodial. Subsection c. may be appropriate for removal from this chapter as covered by the Landlord Tenant law, which is currently the subject of a project being prepared by the Commission. The relevant language is now located at section LT:2-2.1 of that project, which draws from the language currently found in 46:3-8; 46:8-2; 46:8-3. The subsection will remain in this section pending completion of the Landlord Tenant project. 46A:3-3. Fee simple a. A deed conveying an interest in real estate shall, unless clearly stated otherwise, be construed to include all the estate in fee simple if the grantor had such an estate. b. A deed conveying lands to fiduciaries, in which the granting clause runs to the successors and assigns, shall, unless other words of limitation are used, be construed as conveying a fee simple interest in real estate, if the grantor had such an estate, as if the words heirs and assigns had been used. c. If, in any suit to reform a deed of conveyance of lands, the estate is conveyed to the grantee, and either the grantee s successors and assigns forever, or the grantee s legal representatives and assigns forever, the conveyance shall be considered presumptively an estate in fee simple absent clear language to the contrary. d. Whenever a written instrument conveys an interest in any real estate that would have been held an estate in fee tail, such instrument shall vest an estate in fee simple. e. Every person to whom the use of any real estate within this state has been legally transferred, and his or her heirs and assigns, shall be held to be in full legal possession of such real estate. Source: 46:3-9; 46:3-13; 46:

5 This section contains streamlined and consolidated language from the source sections as follows: a., b. and c. are taken from 46:3-13; d. is taken from 46:3-15 and e. is taken from 46:3-9. Staff will research this section further to determine whether subsections b. and c. are necessary. It does not appear that subsection b. is helpful to the reader since it was pointed out that habendum clauses and successor and assign language are not necessary any longer. Subsection c. was proposed for elimination as also unnecessary. 46A:3-4. Fines and common recoveries abolished No fine or judgment entered in any court of record of this state shall be construed to be a conveyance of real estate, or in any way bar any lawful interest or claim in the property. Source: 46:3-10. This section contains streamlined and consolidated language from 46:3-10. It is necessary to determine the meaning of common recovery since the substitution of judgment for that term is not an appropriate one. It is clear that judgments of divorce, partition and in a variety of other cases do convey real estate, so additional work on this section is needed. 46A:3-5. Warranties a. A warranty made by a tenant for life of real estate shall be inoperative and void against all persons to whom such real estate shall descend or come in reversion or remainder. b. A collateral warranty of real estate by an ancestor, who, at the time of making it, has no estate of inheritance in possession therein, shall be inoperative and void against his heirs. Source: 46:3-11; 46:3-12. This section contains streamlined and consolidated language from 46:3-11 and 46:3-12. It is necessary to determine the definition of the term warranty so that Staff understands the issue and the reason for the focus on warrantees in this context. 46A:3-6. Buildings and other things included in deeds to land Every deed conveying land shall, unless otherwise stated in the deed, be construed to include any buildings, improvements, ways, woods, waters, watercourses, rights, liberties, privileges, hereditaments and appurtenances pertaining to the land; and any reversions, remainders, rents, issues and profits thereof. Source: 46:3-16. This section contains streamlined and consolidated language from 46:3-16. The language requires further revision to address things like fixtures and common driveways. 46:3-7. Tenants in common; joint tenants; tenancy by the entireties a. Unless otherwise stated, the transfer of an estate in land to more than one grantee shall be construed to transfer the estate to the grantees as tenants in common. 5

6 b. No estate shall be deemed an estate in joint tenancy, unless expressly set forth in the grant or devise creating such estate that it was or is the intention of the parties to create an estate in joint tenancy and not an estate of tenancy in common. c. Any conveyance of real estate, by the grantor, to the grantor and another or others, as grantees and joint tenants shall, if otherwise valid, be fully effective to vest an estate in joint tenancy in such real estate in the grantees, including the grantor. d. A tenancy by entirety shall be created when: 1. A husband and wife together take title to an interest in real property or personal property under a written instrument designating both of their names as husband and wife; or 2. A husband and wife become the lessees of real property or personal property under a written instrument containing an option to purchase designating both of their names as husband and wife; or 3. An owner spouse conveys or transfers an interest in real property or personal property to the non-owner spouse and the owner spouse jointly under written instrument designating both of their names as husband and wife. e. Language which states... and..., his wife or... and..., her husband shall be deemed to create a tenancy by the entirety. f. No instrument creating a property interest on the part of a husband and wife shall be construed to create a tenancy in common or a joint tenancy unless it is expressed therein or manifestly appears from the tenor of the instrument that it was intended to create such a tenancy. g. Neither spouse may sever, alienate, or otherwise affect their interest in the tenancy by entirety during the marriage or upon separation without the written consent of both spouses. h. Upon the death of either spouse, the surviving spouse shall be deemed to have owned the whole of all rights under the original instrument of purchase, conveyance, or transfer from its inception. Source: 46:3-17; 46:3-17.1; 46:3-17.2; 46:3-17.3; 46: This section contains streamlined and consolidated language from the source sections as follows: a. is taken from 46:3-17;b. is taken from 46:3-17.1; c. and d. are taken from 46:3-17.2; e. is taken from 46:3-17.3; and f. is taken from 46: The language of this section needs to be modified to reflect the impact of the statutory changes pertaining to civil unions and domestic partnerships. Staff will confirm that subsection a. accurately states the default provision in New Jersey and will determine if it is necessary to explain that, in a transfer to a husband, wife and a third party, the husband and wife receive a ½ share of the property and the third party receives a ½ share in the transfer. It has been suggested that subsection c. needs to be made broader to clarify that one with an interest in land may convey to him or herself or use the mechanism of conveyance to alter the nature of the holdings or the percentage of ownership. In subsection d. the references to personal property are removed as unnecessary in this chapter and in practical terms despite the older case in which the proceeds of a fire insurance policy were deemed held in the entireties form until used to purchase a new home. 6

7 Subsection f. may be modified to reflect the default position that if a deed or other document of transfer uses the terms husband and wife, domestic partners or civil union the result is a tenancy by the entireties unless otherwise specified. 46:3-8. Aliens; alien friend defined; right to acquire, hold and transfer real estate A foreign citizen, legally present in this state, shall have the same rights, and be subject to the same liabilities and restrictions in respect of real estate situate in this State as citizens. Source: 46:3-18. This section contains streamlined and consolidated language from 46:3-18. The language pertaining to entitling aliens to be elected to office and the language pertaining to the ability of the State and the federal government to sequester, seize or dispose of real estate has been removed. 46:3-19. Estates, rights and interests in areas above surface of ground a. Estates, rights and interests in areas above the surface of the ground, whether or not contiguous thereto, may be validly created in persons or corporations other than the owner or owners of the land below such areas, and shall be deemed to be estates, rights and interests in lands. Estates, rights and interests in such areas shall be, in all respects, treated as estates, rights and interests in land. b. All of the rights, liabilities and restrictions pertaining to estates, rights and interests in land shall be applicable to such estates, rights and interests in areas above the surface of the ground. c. The provisions of this Title and of any other law of this State, shall be applicable to estates, rights and interests created in areas above the surface of the ground and to instruments affecting such estates, rights and interests, wherever such provisions would be applicable to estates, rights and interests in land. Source: 46:3-19. This section has been proposed for removal in its entirety as no longer necessary. 46:3-9. Transferability of estates of expectancy a. Any person may transfer any contingent or executory interest, or future interest in expectancy, as he or she may at any time be entitled to, or presumptively be entitled to, in any real estate, or any part of such interest. Such transfer may be made even if the contingency on which such interest is to vest may not have happened. Every person to whom any such interest shall have been transferred, shall, on the happening of such contingency, be entitled to stand in the place of the person by whom the interest shall have been or transferred, and to have the same interest, actions and remedies. b. This section shall not be construed to empower any person to dispose of any expectancy which he or she may have as heir of a living person, or any contingent estate or 7

8 expectancy, where the contingency is as to the person in whom, or in whose heirs, the same may vest, or any estate, right or interest to which he or she may become entitled under any deed thereafter executed, or under the will of any living person. c. This section shall not be construed to render any contingent estate or other estate or expectancy herein mentioned liable to be levied upon and sold by virtue of an execution. Source: 46:3-7. This section is still under review and only limited modifications have been made to this time. Staff will confirm that all changes made retain the necessary components of the language. 46:3-10. Restrictions upon transfer or use of realty because of race, creed, color, national origin, ancestry, marital status, or sex a. Any promise, covenant or restriction in a contract, mortgage, lease, deed or conveyance or in any other agreement affecting real property, which limits, restrains, prohibits or otherwise precludes the sale, grant, gift, transfer, assignment, conveyance, ownership, lease, rental, use or occupancy of real property to or by any person because of race, creed, color, national origin, ancestry, marital status or sex is void as against public policy, wholly unenforceable, and shall not constitute a defense in any action, suit or proceeding. No such promise, covenant or restriction shall be included in public notices concerning such property. The invalidity of any such promise, covenant or restriction shall not affect the validity of any other provision in an instrument or agreement, but no reverter shall occur, no possessory estate shall result, nor any right of entry or right to a penalty or forfeiture shall accrue by reason of the disregard of such promise, covenant or restriction. b. This section shall not apply to conveyances or devises to religious associations or corporations for religious purposes, but, such promise, covenant or restriction shall cease to be enforceable and shall otherwise become subject to the provisions of this section when the real property affected shall cease to be used for such purpose. c. Nothing contained in this section shall be construed to bar any person from refusing to sell, rent, lease, assign, or sublease any room, apartment or flat in a dwelling or residential facility which is planned exclusively for or occupied exclusively for individuals of one sex to any individual of the opposite sex on the basis of sex. Nothing in this section shall be construed to bar any place of public accommodation which is in its nature reasonably restricted exclusively to individuals of one sex, which shall include but not be limited to any summer camp, day camp, bathhouse, dressing room, and comfort station, from refusing, withholding from, or denying to any individual of the opposite sex any of the accommodations, advantages, facilities, or privileges thereof on the basis of sex. Source: 46:3-23. This section is still under review and no modifications have been made as yet. It is not clear whether it has been superseded by the LAD, or other law, or whether it is still necessary to retain this language. If the language will be retained, it will be modified as appropriate. III. Revised sections from Chapter 3 proposed for inclusion in a new chapter 8

9 The following sections are proposed for inclusion in a separate chapter of the property project: 46:3-24. Solar easements a. This act shall be known and may be cited as the Solar Easements Act. b. Any easement obtained for the purpose of exposure of a solar energy device shall be in writing and shall be subject to the same conveyancing and instrument recording requirements as other easements. c. Any instrument creating a solar easement shall include: 1. The vertical and horizontal angles, expressed in degrees, at which the solar easement extends over the real property subject to the solar easement. 2. Any terms or conditions under which the solar easement is granted or will be terminated. 3. Any provisions for compensation of the owner of the property benefiting from the solar easement in the event of interference with the enjoyment of the solar easement or compensation of the owner of the property subject to the solar easement for maintaining the solar easement. 46:3-27. Conveyance or reservation of mineral rights; exclusion of water rights Every deed or other instrument which conveys or reserves mineral rights in any land shall, unless otherwise expressly provided therein, be construed to exclude any and all water rights or consideration thereof from any conveyance or reservation of mineral rights. IV. Revised language from Chapter 3A 46:3A-1. Survey, after approval and record, bars proprietors and successors from demands Any survey, made of lands within the State of New Jersey, and inspected and approved by the proprietors, or council of proprietors, and, by their order or direction entered upon the record in the office of the secretary of state or in a surveyor general's office shall, from that time, bar such proprietors and their successors from any demand or claim to the land. Source: 46:3A-1 (L. 1951, First Sp.Sess., c. 352, p. 1463, 1.) This section is still under review but has been preliminarily modified to remove apparently surplus language. 46:3A-2. Newly-made partial surveys made without notice to possessor to be of no avail 9

10 a. The Legislature has determined that: (1) Many ancient surveys of land have not been put on record, or, if recorded, the record has been destroyed or lost. (2) As a result of the natural decay of marked lines and corners, the ancient metes and bounds cannot, except by testimony and reputation, be clearly ascertained. (3) It has been found, that ancient surveys include more land or extend farther than their strict length of chain. (4). This makes it possible for persons other than the owners and possessors of the lands included in such surveys to take advantage of such owners and possessors by confining their holdings to the net length of chain, thereby making vacancies of valuable improved parts. (5) Such persons, causing surveys to be made of such overplus, have procured or may procure such overplus surveys to pass the council of proprietors, without legal preference or due notice to the owners and possessors of the lands covered by the ancient surveys. b. As a result, no newly-made partial survey as is referred to in subsection a. of this section, made on any lands, improved or unimproved, within what has been usually deemed to be the ancient reputed boundary of such lands, shall be recorded or be of any avail to any person so surveying, unless: (1) it shall be made to appear, by the testimony of at least two competent witnesses, that the possessor holding such lands has been duly notified, at least six months before the making of such survey, of the intention to make the survey; and (2) the possessor has refused or neglected to resurvey and cover such overplus lands. c. If the proprietors fail to give preference to a prior survey legally made, or to the possessor of any tract of land, in order to enable the possessor to secure overplus lands found within the possessor s ancient bounds after a resurvey of the possessor s lands is made in compliance with subsection b. of this section, the possessor, or a person legally authorized to act on his or her behalf, may cause the land to be resurveyed in accordance with the ancient reputed lines and boundaries, and may appropriate the overplus lands. d. When the surveyor satisfies a judge of the Superior Court in the county wherein the affected lands are situate that the survey he or she made is just, the survey may be produced to the clerk of the county or counties wherein such lands are situate, who shall on the receipt thereof, record the same. The survey, so made and recorded, shall give to the owner and possessor of the lands covered thereby an absolute title in fee. e. Nothing contained in either subsection c. or d. of this section shall authorize any person to make any survey within the bounds of any survey or resurvey made and entered on record pursuant to the provisions of this section. f. A certificate, executed by the owners of adjoining lands, certifying that any line, corners and boundaries are acknowledged by them to be the true boundary between their lands, 10

11 shall be as fully conclusive and binding as to the parties thereto, their heirs, successors and assigns as though such boundary had been fixed by deed. Any such certificate, when executed with the proper formalities, may be recorded in the office of the county clerk or register of deeds and mortgages, of the county in which such lands lie, and, when so recorded, shall have the same effect as though their respective deeds had been so recorded. g. The provisions of this section shall be construed as a continuation of the prior similar statutory provisions. Source: 46:3A-2; 46:3A-3; 46:3A-4; 46:3A-5; 46:3A-6. This section is still under review but it has been preliminarily modified to remove what appears to be surplus language and to divide the language into subsections for ease of review. 46:3A-7. Effective date This act shall take effect immediately but shall remain inoperative until the repeal of sections 2:25-4, 2:25-5, 2:25-6, 2:25-7 and 2:25-8 of the Revised Statutes. Source: 46:3A-7 This section is proposed for deletion as temporary and executed. V. Revised language from Chapter 6 46:6-1. Transfers, leases, assurances and conveyances pursuant to letters of agency, powers of attorney or other powers or authorities a. All conveyances of real estate, made by virtue of letters of agency, powers of attorney, or other powers or authorities, and entered on the public books of records in New Jersey prior to July 4, 1776, are hereby declared as good and sufficient title in law for all purposes. b. Such conveyances shall bind all constituents, employers, grantors of such powers and authorities, their heirs, and every other person or persons claiming or to claim estate from or under them, or any of them. c. When any real estate has been or hereafter shall be conveyed by virtue of any such powers or authorities as described in subsection a. of this section, such powers or authorities having been first acknowledged or proved and certified and entered upon the public records in the proper record offices of this state, the conveyances made pursuant to the powers thereby granted shall be valid titles against the constituents, employers and grantors of such powers and authorities, against all claiming or to claim estate under them severally and respectively, as if the constituent or constituents had then and there sold and conveyed the real estate. Source: 46:6-1 (1898). This section is still under review and only limited modifications have been made so far to eliminate language that appeared to be surplusage and to divide the section into subsections for ease of review. 11

12 46:6-2. Informalities or irregularities in conveyances executed by agent under power Whenever an attorney, authorized to execute and deliver conveyances of real estate has failed, prior to March 23, 1883, to convey the title of his principal as authorized, by reason of any informality or irregularity in the document of conveyance, the document of conveyance shall be deemed to convey title to such real estate as though such informality or irregularity did not exist. Source: 46:6-2 This section is still under review and only limited modifications have been made so far to eliminate unnecessary language. 46:6-3. Conveyances under powers of attorney not recorded Whenever any deed to or conveyance of real estate in this state shall purport to have been executed by virtue of any letter of attorney, and such deed or conveyance shall have been properly acknowledged and recorded, the recital of the letter of attorney in such deed or conveyance shall be prima facie proof of the existence thereof, notwithstanding the same may not be recorded, but only when such deed or conveyance shall have been recorded at least ten years, and the person claiming thereunder shall take and subscribe an oath that he has seen such letter of attorney so recited, which oath shall be recorded in the office of the county recording officer of the county wherein such real estate is situate, in the book therein provided for the recording of powers of attorney. Source: 46:6-3 This section is proposed for elimination as anachronistic. It was discussed by the Commission at an earlier meeting. It provides a method to correct title when a deed was signed through a power of attorney, but the power of attorney was never recorded. However, the limitations of the statute make it useless. It applies only to deeds that have been recorded for ten years, and it requires an affidavit from someone who saw the power of attorney. It is unlikely that both conditions can be met. VI. Revised language from Chapter 7 46:7-1. Deed of confirmation a. When a corporation or association created pursuant to the laws of this State conveyed real estate or any interest therein during its existence, and thereafter ceased to exist by reason of dissolution or otherwise, if it is later discovered that an error exists in the document of conveyance, the error may be corrected by a deed of confirmation. b. Any surviving president, vice-president, director or trustee of such defunct corporation or association may, by deed of confirmation, containing a proper recital, correct the error in the original document of conveyance. If none of the officers is living, the oldest adult child, or, if there is none living, the oldest adult grandchild of any such individual may make such deed of confirmation. 12

13 c. Prior to the making of any deed of confirmation, the person claiming entitlement to the benefit of this section shall institute an action in the Superior Court, against any person hereby authorized to make the deed of confirmation. The court may proceed in a summary manner and, after considering the nature of the error in the original document of conveyance, and the relief sought, may, if convinced of the merit of the action, direct the proper person to execute and acknowledge the confirmatory deed. d. If the person directed to execute the confirmatory deed fails to comply with the judgment of the court within 20 days after being served with a certified copy thereof, the court may, upon proof thereof, appoint a commissioner to execute the confirmatory deed. e. The costs of the action shall be chargeable to the plaintiff. f. A confirmatory deed executed and acknowledged or proved in accordance with the terms of this section shall be as valid as if duly made, executed and acknowledged or proved under the corporate seal of the corporation or association during the period of its corporate existence. Source: 46:7-1 (1953) This section is still under review and only limited modifications have been made so far to eliminate language that appeared to be surplus and to divide the section into subsections for ease of review. 46:7-2. Conveyance to religious organization or entity or not for profit association a. If a conveyance of real estate was made and recorded prior to: (1) April 6, 1915, to grantees who took title on behalf of an unincorporated religious organization or entity, or (2) March 30, 1931, to an unincorporated association not for pecuniary profit or to any person or persons on behalf of or in the interest of any such association, on condition that the real estate be held in trust for a specific uses and purposes, or that the rents, issues and profits be appropriated to specific uses and purposes, and the organization or entity later incorporates pursuant to the laws of this State, the title to the real estate so conveyed as aforesaid, shall vest in the incorporated association as effectually as if it had been incorporated at the time of such conveyance, and such conveyance had been made directly to the incorporated association. b. After a conveyance made as described in subsection a. of this section, title to the real estate shall vest in the incorporated entity as if the entity had been incorporated at the time of the original conveyance and the incorporated entity shall have the same right to convey such real estate as the unincorporated association, or the person or persons to whom such conveyance was made on behalf of such unincorporated association, and any deed made by such incorporated association, its trustees or officers, shall be valid and effectual in law. c. If trustees or others acting on behalf of an unincorporated organization take title to real estate in their own names, or in their own names as trustees of such unincorporated organization, and the unincorporated organization subsequently incorporates pursuant to the laws of this State, in the same or any other name, the real estate may be conveyed to the corporation. 13

14 The surviving trustees, or other individuals who acted on behalf of the unincorporated organization, shall convey, by deed, all of their interest in the real estate to the trustees of such incorporated organization. The perfected organization shall hold title to the real estate as if it were the original recipient. Source: 46:7-2 46:7-8. This section is still under review and limited modifications have been made so far to eliminate language that appeared to be surplus, to consolidate two sections of the statute and to divide the section into subsections for ease of review. 46:7-2 (1915) originally included language, deleted in this draft, which said: and the organization or entity later incorporates pursuant to the laws of this State, any surviving grantee may, by a deed containing a proper recital, convey the real estate mentioned in the original conveyance to the religious entity in its corporate name. If none of the grantees is living, the oldest adult child, or, if there is none living, the oldest adult grandchild of any such individual may make the deed of conveyance herein provided for. The current language simply transfers the interest in the real estate to the incorporated entity. It is not clear that the distinctions between the processes of transferring title are warranted, and so the procedure set forth in 46:7-8 (1931) were adopted here. 46:7-2 also lacked the language which states or that the rents, issues and profits be appropriated to specific uses and purposes. The language of subsection c. was also streamlined. 46:7-3. Statements curing defects in designation of corporate grantees a. When a conveyance of real estate or an interest therein is made to a religious society or corporation or an association not for pecuniary profit, incorporated pursuant to the laws of this state, and the conveyance fails to correctly identify the grantee, the error may be corrected as set forth in this section. b. If the intention of the grantor is manifested by the use, in such conveyance, of the principal words of the corporate name or designation of such entity, and the entity has entered into possession and occupation of the conveyed real estate, the entity may file, in the office of the proper county recording officer, a statement setting forth: (1) the date of the conveyance; (2) the date of its recording; (3)the number and page of the book of record thereof; (4) the name of the grantor; (5) a description of the property conveyed; and (6) the erroneous title or designation of such society, corporation or association as expressed in the conveyance, together with the correct title or designation thereof. Such statement shall be verified by any duly authorized officer of the entity, before an individual authorized to take acknowledgments or proofs of deeds. 14

15 c. The statement described in subsection b. of this section, when filed, shall be recorded by the county recording officer and, when so recorded, shall vest in such entity title to the real estate or interest so conveyed as though the same had been conveyed by a proper corporate name or designation. d. For recording statements pursuant to this section the county recording officer shall receive the same fees as are allowed by law for recording deeds. Source: 46:7-3. This section is still under review and only limited modifications have been made so far to eliminate language that appeared to be surplus and to divide the section into subsections for ease of review. 46:7-5. Conveyances to entities prior to incorporation valid after incorporation a. Where a conveyance of real estate has been made, executed and recorded in favor of a: (1) religious society, association or corporation of this state; (2) club or society; (3) any lodge or subordinate lodge; or (4) other body or association, as the grantee, and such entity failed to record and file the proper certificate of incorporation in the manner prescribed by the laws of this State at the time when the entity was attempted to be incorporated, until after the conveyance of real estate and the recording thereof, the conveyance shall be as valid as if made, executed and delivered to the entity after the filing and recording of the proper certificate of incorporation and as if made to such entity. b. The record of any such conveyance so made to any such entity prior to the recording and filing of its certificate of incorporation as aforesaid shall be of the same force and effect as if the conveyance had been made, executed and recorded subsequent to the recording and filing of such certificate of incorporation. Source: 46:7-5; 46:7-6; 46:7-7 This section is still under review and only limited modifications have been made so far to eliminate language that appeared to be surplus and to divide the section into subsections for ease of review. Three sections of the statute were consolidated to create this section. There were some differences in the language that have been eliminated in this draft. This was done because of the potentially confusing overlap of language 46:7-5 referred to any religious society, association or corporation of this state, 46:7-6 referred to any club, society, association or other body and 46:7-7 referred to any lodge, subordinate lodge, society or other body or association. 46:7-6 contains language, eliminated in this draft, which says: This section shall not apply to clubs, societies, associations or other bodies in this state incorporated prior to April twenty-first, one thousand eight hundred and ninety-eight; nor shall it apply to any club, society, association or other body unless the same shall first make, execute and record and file a certificate of incorporation in the manner provided by Title 15, Corporations and Associations Not for Profit, under the corporate title, named and set forth in any such conveyance made prior to its incorporation. 15

16 46:7-7 contains language, eliminated in this draft, which limits its effect to lodges, etc., whose members shall have entered into the possession and enjoyment of such real estate. 46:7-9. Incorporation, powers, etc., of land improvement companies Rev.1877, pp. 567 to 569, s.s. 1 to 16 (C.S. pp to 3056, s.s. 1 to 16), being an act entitled "An act to encourage the improvement of real property in this state" (Revision), approved March twenty-seventh, one thousand eight hundred and seventy-four, together with the supplements thereto, approved April ninth, one thousand eight hundred and seventy-five (Rev.1877, p. 569, s. 17; C.S. p. 3056, s. 17), April thirteenth, one thousand eight hundred and seventy-six (Rev.1877, p. 1350, s. 1; C.S. p. 3055, s. 12a), February tenth, one thousand eight hundred and eighty (L.1880, c. 14, p. 25; C.S. p. 3056, s. 18); and Rev.1877, pp. 1350, 1351, s.s. 2, 3 (C.S. p. 3056, s.s. 19, 20), being an act entitled "An act to encourage land improvement companies organized under special laws of this state," approved March ninth, one thousand eight hundred and seventy-seven; and L.1880, c. 126, p. 167 (C.S. p. 3057, s. 21), entitled "An act to enable the corporators of land companies that have not organized under their charters to change the titles of said companies," approved March tenth, one thousand eight hundred and eighty, saved from repeal. [Provides for incorporation, powers, officers, stock, investments and certain changes of land improvement companies and also certain powers granted to specially organized land improvement companies.] Source: 46:7-9 This section is proposed for elimination as anachronistic. It is a savings statute, a kind of statute that is not considered part of the general and permanent law. These statutes are not usually compiled. However, there may be no way to de-compile it easily, and it may have continuing importance to a few companies Staff will research to determine its continuing viability. VII. Revised language from Chapter 10 46:10-1. Support of party or other walls adjacent to excavations eight feet in depth Whenever excavations, for buildings or other purposes, on any lot or piece of land, shall be intended to be carried to a depth of more than eight feet below the curb or grade of the street, and there shall be any party or other wall, wholly or partly on adjoining land, and standing upon or near the boundary lines of such lot or piece of land, the person causing such excavations to be made, if afforded the necessary license to enter on the adjoining land, but not otherwise, shall, at all times, from the commencement until the completion of such excavations, preserve, at his own expense, such party or other wall from injury, and so support the same by a proper foundation that it shall remain as stable as before such excavations were commenced. Source: 46:10-1 (1877) This section is recommended for repeal because the Uniform Construction Code covers the same subject matter but is broader, providing more protection, including notice to the neighboring property owners. 16

17 VIII. Revised language from Chapter 11 46:11-1. Right of entry to make surveys in certain proceedings In any proceeding to lay out, alter, vacate or open a public road or street, or to determine which of the proprietors or possessors of the lands adjacent to any highway have narrowed or encroached on the same, and in any proceeding under the act entitled "An act to enable the owners of swamp or meadow ground to drain the same, and to repeal a law heretofore made for that purpose," approved November twenty-fourth, one thousand seven hundred and ninety-two, and the several supplements thereto, and in any other proceeding touching a public improvement, any practical surveyor, with the necessary assistants, employed by any person interested in any of such proceedings, may enter on the lands adjacent to such highways or streets, or the lands to be drained under the provisions of said act, or other lands, for the purpose of making necessary surveys, doing as little damage as possible to the owner or owners of such lands. Source: 46:11-1 (1887) This section is recommended for repeal as anachronistic. It is unlikely that any public entity even knows of this statute. It is also unlikely that any public entity doubts that it has the power purportedly conferred by this section or that a modern court would entertain an action for trespass under the circumstances described. 17