REPORT TO THE COUNCIL OF DELEGATES

Transcription

1 OHIO STATE BAR ASSOCIATION SCREENING COMMITTEE REPORT TO THE COUNCIL OF DELEGATES The Screening Committee began at 10:02 AM on April 7, 2017, with the following members present in person or by phone: Belinda S. Barnes, Columbus - Chair Eileen M. Bitterman, Cleveland Katherine S. Chappelear, Columbus Frank J. Cimino, Ravenna Alphonse P. Cincione, Columbus Eric K. Combs, Cincinnati George L. Davis, Portsmouth Joel D. Eagle, Cleveland Wendi M. Fowler, Mount Vernon Timothy A. Garry, Norwood Grant B. Garverick, Galion Michael L. Gay, Cincinnati Melissa A. Graham-Hurd, Akron Thomas L. Guillozet, Piqua Thomas P. Kemp, Findlay David H. Lefton, Cincinnati Richard R. Mellott, Jr., Lorain Scott R. Mote, Columbus Anne Owings Ford, Brecksville James F. Peifer, Springfield Scott M. Robe, Athens Karen E. Rubin, Cleveland Maura E. Scanlon, Akron Heather G. Sowald, Columbus Andrew C. Storar, Dayton Charles E. Strain, Cincinnati E. Jane Taylor, Columbus Jennifer L. Thomas, Carrollton J. Michael Thompson, Youngstown Mark A. Van Dyne, Lima Patricia A. Walker, Medina Barbara Friedman Yaksic, Cleveland Also present: Todd Book, Director of Policy and Government Affairs William K. Weisenberg, Senior Policy Advisor Maggie Ostrowski, Senior Manager, Public and Media Relations Judge Howard H. Harcha, III representing the OSBA Board of Governors Jeffrey R. Wahl representing the Corporation Law Committee John F. Furniss, III representing the Estate Planning, Trust and Probate Law Section John M. Liming representing the Real Property Law Section Council Richard B. Fry, III representing the Taxation Law Committee Stephen T. Lynch and Col. (Ret.) Duncan D. Aukland representing the Military and Veterans Affairs Committee Grace A. Szubski representing the Workers Compensation Law Committee A. RESOLUTION FROM THE BOARD OF GOVERNORS Presented by Judge Howard H. Harcha, III, Chair of the Government Affairs Committee Mr. Storar moved, seconded by Ms. Sowald, to recommend the resolution. The motion was approved unanimously. 1

2 B. REPORT OF THE CORPORATION LAW COMMITTEE Presented by Jeffrey R. Wahl, Chair of the Corporation Law Committee Mr. Mote moved, seconded by Mr. Davis, to recommend the proposal. The motion was approved unanimously. C. REPORT OF THE ESTATE PLANNING, TRUST AND PROBATE LAW SECTION Presented by John F. Furniss, III Proposal 1 Ms. Schuster moved, seconded by Ms. Graham-Hurd, to amend the proposal as follows: At line 294, delete the word return and replace it with the word release. At line 297, delete the first and second said in the line and replace both with that. The motion to amend was adopted. Mr. Guillozet moved, seconded by Mr. Lefton, to recommend the proposal as amended. The motion was adopted unanimously. Proposal 2 Ms. Schuster moved, seconded by Mr. Davis, to amend the proposal as follows: At line 461, delete the word such and replace with the. At line 467, delete the word such and replace with the. The motion to amend was adopted. Ms. Taylor moved, seconded by Mr. Mote, to amend the proposal as follows: At line 435, insert is ineffective after the second trust in the line and before the comma. The motion to amend was approved. Mr. Mote moved, seconded by Ms. Sowald, to recommend the proposal as amended. The motion was adopted unanimously. 2

3 D. REPORT OF THE REAL PROPERTY LAW SECTION COUNCIL Presented by John M. Liming of the Real Property Law Section Council Due to a technical challenges, the proposal was incorrectly printed in the booklet. Ms. Barnes moved, seconded by Mr. Mote, that the text of the proposal should appear as follows: REPORT OF REAL PROPERTY LAW SECTION COUNCIL To the Council of Delegates: The Real Property Law Section Council respectfully requests your favorable consideration of the following proposal: To modify the Ohio Standards of Title Examination by amending Standard 2.1 dealing with discovery of a defect in title that was previously examined by another and Standards 3.2, 3.3, 3.4, and 3.5 dealing with descriptions, delivery of deeds, creation of survivorship estates and conveyances by partnerships. Respectfully submitted, John I. Cadwallader, Columbus Chair Rationale for Proposal: The Ohio Standards of Title Examination are prepared by the Real Property Law Section Council of the Ohio State Bar Association, approved by the Council of Delegates, and promulgated by the OSBA for the primary purpose of promoting uniformity of practice pertaining to the marketability of title of real property in the State of Ohio. While not statutory, these standards establish a custom and practice regarding the examination of title and marketability of title based upon existing statutes and case law. This is done in the format of a question, the answer to the question establishing the standard, and comments regarding the standard. The current version of Title Standard 2.1 deals with a current title examiner discovering a matter that brings into question whether there is marketable title, when another attorney has previously examined the title and has not objected to the possible defect. As before, the standard encourages communication between the attorneys. Standard A of 2.1 has been expanded and now includes reference to cooperation by the attorney being contacted. Title Standard 3.2 addresses errors with respect to descriptions in deeds in the chain of title. Beyond minor changes in word choices, the changes to this standard include an expansion of Standard B to include acceptance of a suitable Affidavit from a person with personal knowledge explaining a minor error, irregularity, or deficiency in a description. Comment B adds the concept of a description being sufficient to place the world on notice of the precise real property that was intended to be conveyed. Problem C has been added, in light of recent court 3

4 cases, to reflect that, if a deed includes multiple descriptions, the legal description would be controlling over such other descriptions as a street address or parcel number. Title Standard 3.3 addresses proof of delivery of deeds. It is subject to limited revisions for the sake of clarity. The changes are basically ones of language. Title Standard 3.4 addresses the language necessary to create an estate with the right of survivorship. Standard A has been amended to remove requirement of the phrase his or her heirs or assigns. Examples of language that does not create an estate with right of survivorship have also been eliminated. Problem B has been revised to take into account the possibility of a survivorship deed with more than two grantees. Title Standard 3.5 addresses conveyances by a partnership and evidence of authority to execute conveyances on behalf of a partnership. Ohio s adoption of the Revised Uniform Partnership Act, or portions thereof, as applicable to transfer of partnership property and establishment of partnership authority, and the basis for the proposed revisions. OTS EXAMINATION DISCOVERING DEFECT IN TITLE PREVIOUSLY EXAMINED BY ANOTHER When an attorney examines a title that is believed to be which he believes unmarketable or brings into question whether there is a marketable record title, what steps should be taken should not be approved and if the attorney he has knowledge knows that the same title has been examined by another attorney, and the examining attorney has approved itnot objected to the defect? Should the attorney communicate with the other attorney? Yes, if practicable, it is recommended that the Attorney should communicate with the previous examiner, explain the matter objected to and an opportunity should be afforded for discussion, explanation, and correction. The attorney contacted should cooperate fully and promptly in investigating his/her records and taking whatever steps are necessary to explain and/or correct the title defect complained of. This standard is a matter of ethics and a recommendation before taking to the client. The attorney should counsel his/her client as to the distinctions between marketable title and insurable title and the possible consequences of failing to obtain a marketable title. (Effective as amended April 28, 2017; originally eeffective November 1, 1952) 3.2 CONVEYANCES-DESCRIPTIONS 4

5 Should an objection to the title be raised because one or more deeds in the chain of the title contains an error with respect to the reference to the propercorrect plat book and plat book page of platted land? If the deed refers to a subdivision by an exclusive descriptive name, an objection should not be raised because of an error in the reference to the plat book and the plat book page where saidthat subdivision is recorded. (Effective November 1, 1952) Problem B: Should objection be made on account of minor typographical errors, irregularities or deficiencies in a description of land? Standard B: Such an objection should not be made when a subsequent conveyance contains a correct description., or when the minor error, irregularity or deficiency is explained by a person with personal knowledge in a suitable affidavit of facts related to title from a person with personal knowledge pursuant to Revised Code Section (B)(4) or (5). (Effective May 19, 1955).) Comment B: Errors, irregularities and deficiencies in property descriptions in the chain of title do not impair marketability unless, after all circumstances of record are taken into account, a substantial uncertainty exists as to the land whichthat was conveyed or intended to be conveyed, or the description falls beneath the minimal requirement of sufficiency and definiteness which is essential to an effective conveyance. Lapse of time, subsequent conveyances, the manifestobvious or typographical nature of errors or omissionomissions, accepted rules of construction and other considerations should be relied upon to approve marginallydescriptions that are sufficient or questionable descriptions. to place the world on notice of the precise real property that was intended to be conveyed. Problem C: If multiple descriptions are provided in a deed, such as a street address, parcel number, and legal description, then which description is controlling? Standard C: Legal description. 5

6 (Effective as amended April 28, 2017; and as amended and supplemented November 12, 1960; originally effective May 19, 1955) 3.3 CONVEYANCES-DELIVERY Should a title be considered unmarketable when it appears from the county records that the grantor died before the deed was filed for record? Yes, unless waived for lapse of time or unless there is satisfactory proof of delivery before death. An affidavit of the notary public or the witnesses, if any, of an attorney at law for a party in the transaction, or of other responsible persons who were present at the time of delivery, setting forth specific facts concerning sufficient to confirm the delivery of the deed to the named grantee(s), should be deemed satisfactory proof if setting forth sufficient facts.. Delivery should be presumed after the deed has been of record for twenty-one years, in the absence of other facts raising a doubt. Comment A: See Kniebbe v. Wade, 161 Ohio St. 294, 118 N.E. 2d 833 (1954). This The Kniebbe case was decided after the above standard was adopted. (Effective as amended April 28, 2017; originally effective November 1, 1952; Comment A added November 21, 1964.) 3.4 CONVEYANCES-SURVIVORSHIP What language creates an estate with right of survivorship? Where the operative words of a deed clearly express an intention to create the right of survivorship, such expressed intention will be given effect and the survivor will take by force of the terms of the grant. Upon the death of the other grantee or grantees, the survivor acquires the entire estate, subject to the charge of death taxes. A conveyance is sufficient to create an estate with right of survivorship when it contains " to A and B for their joint lives, remainder to the survivor of them, his or her heirs or assigns" or the like. or substantially similar language. To be sufficient the conveyance should contain the names of the grantees and a reference that the survivor is entitled to the remainder. A 6

7 conveyance is not sufficient to create an estate with right of survivorship when it contains " to A or B"; " ; to A or B, their heirs or assigns"; " ; to A or B or his heirs and assigns"; " ; to A and B or the survivor"; ; or the like. Any deed or will containing language that shows a clear intent to create a survivorship tenancy shall be liberally construed to do so. Use of the word " or" between the names of two or more grantees or devisees does not by itself create a survivorship tenancy, but shall be construed and interpreted as if the word " and" had been used between the names. (R.C. Sec ). Comment A: Revised Code Section became effective on April 4, (Effective as amended November 11, 1989; originally adopted November 1, 1952, and amended May 8, 1969).) Problem B: What shall be sufficient proof of the first death of a grantee of a survivorship deed? when one or more other grantees set forth in a survivorship deed remain alive? Standard B: A certificate of transfer as provided in Section under the Revised Code or an affidavit accompanied by a certificate of death. For contents of the affidavit see Revised Code Section Comment B: For property affected by Revised Code Section (Torrenized Property) the procedure for the transfer of the interest of the decedent shall be pursuant to Section of the Revised Code. Problem C: Does subsequent incompetency of one or more of such owners alter the interests so created? Standard C: No. Comment C: The incident of survivorship is not destroyed. (Effective November 15, 1969; replaces Problem C of May 21, 1953.) Problem D: 7

8 What is the effect of a deed that contains the names of the grantees and a reference that the survivor is entitled to the remainder that does not failing to state the marital status of the grantees when following the survivorship deed form that is set forth in Revised Code Section ? Standard D: The failure to cite the grantees marital status when utilizing the form set forth in Revised Code Section does not make the survivorship tenancy defective. (Effective as amended April 28, 2017; originally effective November 15, 1969; replaces Problem C of May 21, 1953) 3.5 CONVEYANCES-PARTNERSHIP What should be required to show the authority of partners to execute conveyances inon behalf of the partnership? A conveyance from a partnership holding the title is sufficient if it recites that the partners executing it are all the partners, in the absence of information to the contrary. When it does not appear that all the partners executed the conveyance, satisfactory evidence of authority, such as a resolution or a certified copy of a Statement of Partnership Authority pursuant to (D)(2), should be required. Any such evidence of authority should be signed by all the partners in order to be considered satisfactory. Authority of the partner or partners executing the conveyance should be presumed after it has been of record for five years. Problem B: Should an objection be made to the title because a deed to a partnership does not disclose that the grantee is a partnership? Standard B: No, but if the partnership name does not contain the names of all of the partners, then a fictitious name certificate must may be filed in any county where the partnership owns real property. (Revised Code Section (R.C ), former was repealed in 2010.) (Effective as amended April 28, 2017) effective November 1, 1952; Standard B amended 10/27/86; effective 11/15/86) 8

9 The motion was agreed to. Mr. Guillozet moved, seconded by Mr. Garverick, to recommend the proposal as amended. The motion was adopted. E. REPORT OF THE TAXATION LAW COMMITTEE Presented by Richard B. Fry, III, Chair of the Taxation Law Committee Mr. Mote moved, seconded by Mr. Storar, to recommend the proposal. The motion was agreed to unanimously. F. REPORT OF THE MILITARY AND VETERANS AFFAIRS COMMITTEE Presented by Stephen T. Lynch, Co-Chair of the Military and Veterans Affairs Committee and Col. (Ret.) Duncan D. Aukland, member of the Military and Veterans Affairs Committee Proposal 1 Ms. Taylor moved, seconded by Ms. Sowald to recommend the proposal. The motion was agreed to unanimously. Proposal 2 The Military and Veterans Affairs Committee withdrew the proposal from consideration. G. REPORT OF THE WORKERS COMPENSATION LAW COMMITTEE Presented by Grace A. Szubski representing the Workers Compensation Law Committee Mr. Robe moved, seconded by Ms. Sowald, to recommend the proposal. The motion was agreed to unanimously. There being no other business the Screening Committee adjourned at 12:01 PM. Respectfully submitted, Todd Book 9