2017 Seminar Series. Here s Your Sign..er

Transcription

1 2017 Seminar Series Here s Your Sign..er Cheryl Jones Title Counsel Attorneys Title 104 N. Main Street Hendersonville, NC (828) Cheryl.Jones@AttorneysTitle.com

2 Cheryl Jones Cheryl is a Title Counsel with Attorneys Title and provides legal support and advice to Attorneys Title offices across the state. Cheryl is a native of Henderson County, North Carolina. She received her B.A. from Gardner Webb University, her M.A. from Appalachian State University, and her J.D. from Charleston School of Law. She was admitted to practice in 2007 and most recently practiced as an associate with the law firm of Bazzle, Carr, & Parce, P.A. in Hendersonville, North Carolina. The primary focus of Cheryl's practice was real property. Cheryl is a member of the North Carolina Bar Association and the Henderson County Bar Association

3 Here s Your Sign...er Cheryl M. Jones, Branch Manager and Title Counsel Attorneys Title Who you gonna call??? There may be a deed in, but who you gonna call to sign the deed out? The answer is simple. Anyone with an interest in the property must sign the deed out, but it s the question which may be difficult: Who has an interest in the property? Who received title? In the beginning A valid deed was recorded vesting title in Filmore Gilmore. He was the sole grantee and the deed properly indicated that he was unmarried. 1 1

4 and then... A realtor knocked at Filmore s door and told him that it was a seller s market. He should sell his home because it was worth 300% more now than when he purchased it. Sure enough, the realtor delivered a buyer. The inspections are complete, the buyer s financing is in place, the closing attorney is in receipt of the loan package and Filmore is ready to close. Hypothetical 1 Filmore remains unmarried at date and time of closing. Filmore only. He was the sole grantee coming in, so he is the sole grantor going out Hypothetical 2 Filmore made it official and married his sweetheart. 1. Filmore and his spouse. See NCGS a. What s the risk? Elective/spousal share survives closing 2. Is there a valid waiver? e.g. premarital/prenuptial; free trader; separation agreement; deed into grantee spouse; etc. a. Start analysis with NCGS

5 Hypothetical 2-cont d Assume that 2 years after buying the home, Filmore and his spouse took title as tenants by the entireties (TBE). Later they were legally divorced prior to closing. Divorce severs TBE, but parties hold as co-tenants. Both sign deed (with any new spouses) What if there is a Separation Agreement? Is it a valid conveyance of title? Directive to convey? If a deed is recorded between the spouses, is there proper waiver language? (See NCGS , et al) Hypothetical 3 Filmore s attorney pal creates a perfect, new trust for him and there is a conveyance of title into the trustee of that trust. General Answer: The currently acting trustee(s) with proper authority Key: Who is trustee? And does s/he/they have authority to act as contemplated? BUT...was Filmore married when he conveyed to the trustee? If so, his spouse needs to execute a deed (there are exceptions-e.g. subsequently divorced, etc.) Hypothetical 4 Filmore s unmarried and wants a change of pace, so he decides to move to a warm, exotic island for a few years. Just until he warms up to the idea. He has a company that holds title for his rental properties. He talks to his attorney pal and transfers the title for his house to this company. Then he rents the house to his nephew and hops a plane. 3 3

6 Hypothetical 4-cont d 1. The grantee on the deed is ABC Corporation, a North Carolina corporation (assume properly formed) NCGS 55* = NC Business Corporation Act *55A = Nonprofit Corps; 55B = Professional Corps Key question: Who has authority to sign on behalf of the Corporation? : if no initial directors or board of directors in incorporation docs, then corporation shall elect them : Corporation shall adopt bylaws to govern its dealings & operations : how to name officers What documents can the corporate officers provide? What is of record on NC Secretary of State website? Still in good standing? Hypothetical 4 - cont d 2. The grantee on the deed is ABC Company, a North Carolina limited liability company (assume properly formed) NCGS 57D = NC Limited Liability Company Act Key question: Who has authority to sign on behalf of the LLC? 57D-10-01(b): purpose of Chapter is to provide flexible guidelines for the organization and management of businesses; minimal prescribed formalities or constraints 57D-1-03(23): Operating agreements control and can be written, oral, or implied *No operating agreement, then company s articles of organization become default governing docs. 57D-2-30(d): authorizes 3 rd parties to rely on NC SOS s public records even if they are in conflict with the operating agreement. *In what capacity will the signer execute the deed (e.g. member, manager, named officer)? Is action to be taken approved by LLC, on the terms provided, and is person(s) signing the deed authorized to bind the LLC? Is the LLC in good standing? Hypothetical 4 - cont d Is the entity in good standing in its state of formation? NCGS 55-14: dissolution of corporations NCGS 57D-6: dissolution and winding up of LLC s In which state was your corporation/llc formed? Conveying title after dissolution Truly winding up? Who can sign? NCDOR concerns? 4 4

7 Hypothetical 5 Filmore is now 125 years old. He passes away peacefully one day while taking a nap (but after completing the last item on his bucket list). Who signs the Deed? 1. If Filmore died under a valid contract for purchase: See NCGS 28A-17-9 allows personal representative (PR) to complete the terms of the contract on behalf of the estate. Hypothetical 5 - cont d 2. If Filmore was not party to a contract: NCGS 28A: Administration of Decedent s Estates NCGS 28A-15-2(b): Upon death, title passes to heirs or devisees BUT ALSO SEE NCGS 28A-17-12(a)(2) IF the notice to creditors runs within 2 years of decedent s death, then all sales by heirs/devisees* are void as to creditors IF: Joined by personal representative (PR) and Made after first publication or posting of the notice to creditors *spouses of devisees/heirs must also join in conveyance Hypothetical 5 - cont d 3. Exceptions: a. Property devised to PR/Executor or Executrix PR executes deed b. Will contains clear directive to sell PR executes deed Must be a directive; incorporating general statutory power to sell is not sufficient c. PR receives Order to sell property to pay debts of estate See NCGS 28A-15-1, et al d. Property devised to a trust Trustee s execution of deed 5 5

8 Hypothetical 5 - cont d 4) Miscellaneous: a. What if a devisee/heir is signing individually and as PR? Indicate capacity = e.g. Jane Doe, as executor of the Estate of John Doe and individually. b. Ancillary Administrations Decedent passed in another state v. passing in another county in NC c. Probate v. recording or putting will on record d. Death of prior owner Is there an estate? Did proper parties convey title? 6 6