Subjects Covered. by Morrie Erickson, Attorney Titleplus! Indiana Land Title Association

Transcription

1 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 Holding & Conveying Natural persons Severalty TICs & joint tenancies Presumption of TIC (IC ) Joint tenancies - survivorship Tenants by the entireties (h&w) Same-sex couples (DOMA - 1 USC Sec 7 & 28 USC Sec 1738C) Adults Minors 1

2 Entities Trusts & trustees (Trustees hold, per IC ) Personal representatives Corporations (for profit & not-for-profit) Partnerships (general & limited) LLCs & LLPs Unincorporated associations Role of Secretary of State Deeds General warranty (IC ) Limited/Special warranty Quitclaim (IC ) Trustees, PRs & Com n rs ( convey ) Executed outside USA (IC ) Mailing address for tax bills (IC ) Recitations Authority to sign for entity Resolutions Incumbency cetificates POAs Specific vs. general powers Legal descriptions 2

3 Recitations (cont) Individual persons by POA (IC ) 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 Reference to recorded encumbrances IC (recording requirements) Reference may be specific to each item Reference may be general ( all conditions, covenants, easements & restrictions of record ) IC (Marketable Title Act) Matters affecting title must be specifically stated on deeds to survive after 50 yrs LW&Ts Leases & Memos (IC ) Conditional sales contracts Memos OK? Contract deduction if Memo (IC ) Options Rights of first refusal 3

4 Pursuant to statute Intestate succession (IC ) Marriage dissolution (IC ) Tax sale (IC & IC ) Condemnation (IC ) 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 Pursuant to statute (cont) Adverse possession (IC & IC ) Entity dissolution, merger, consolidation Successor trustees 4

5 By court order or judgment Foreclosure Protecting Tenants at Foreclosure Act (Title VII of PL , eff 5/20/09, exp 12/30/12) Rights of redemption Indiana No sheriff s sale for 3 mo after complaint filed (IC ) Can redeem until sheriff s sale (IC ) 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 By court order or judgment (cont) 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) 5

6 By court order or judgment (cont) Marriage dissolution (IC ) Title changes to TIC Child support (IC ) Delinquent treated as judgment lien (IC ) Orders are lien if on judgment docket (IC ) Otherwise, unperfected secured creditor Property settlement/division Judgments against spouse (prior & marital) Is decree a conveyance? By court order or judgment (cont) Successor trustee (IC ) Partition (IC ) Personal Representative (IC ) Guardian (IC ) Receiver (IC ) Execution (IC & IC ) Bankruptcy trustee (11 USC 363) Transfer on death deeds (IC ) 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 6

7 Easements Interest in land Creation by document Express grant Reservation in deed In writing to be enforceable (IC ) Describe dominant & servient estates Recording requirements per IC 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 ) Electric transmission lines Gas pipelines 7

8 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 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 8

9 Mortgages Consensual lien (as is vendor s lien) 1st/senior mortgages Priority over prior judgment (IC ) if purchase money mortgage Non-purchase money Construction mortgages & future advances HELOCs & other juniors Mortgages (cont) Expiration of mortgages & V/Ls See IC 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 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 9

10 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 Public property Lien lasts 1 yr after recorded No-lien contracts (IC [e], [f] & [g]) O&G & Minerals O&G leases affect title marketability MTA: IC et seq. Salmon v. Perez, 545 NE 2nd 21 Surface & subsurface rights Eliminating O&G leases (IC ) Eliminating mineral int. (IC ) 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 10

11 Judgments Indiana Final IN court judgments (IC ) Lien starts when entered in judgment docket Liens last for 10 yrs after rendition PPTJs - same rules apply IDOR tax warrants under IC 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 et seq. Certified by other state or DC Full faith & credit IC 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 11

12 Other Liens Hospital (IC ) 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 ) 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 ) Was secret lien under former statute Now, lien perfected upon recording Up to $2,500 - residential & unimproved Up to $10,000 - commercial 12

13 Other Liens (cont) Medicaid (IC 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 Perfected in Recorder s office Other Liens (cont) Common law (IC ) Oxymoron (statute but common law?) Procedure for filing & releasing Legal basis of $$ owed for services pertaining to real estate Perfected in Recorder s office Similar to mechanic s lien filing procedure Void 180 days after recording unless lawsuit filed Other Liens (cont) Ditch assessment (IC ) 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 13

14 Other Liens (cont) Environmental (IC ) Lien against real estate from which State cleaned up hazardous substances Perfected in Recorder s office Other Liens (cont) Inheritance tax (Indiana) (IC ) 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 ) For aid given by public authorities Perfected in Recorder s office Perpetual lien against recipient s real estate & other property 14

15 Other Liens (cont) Surveyor, engineer & architect (IC ) Fees for professional services Perfected in Recorder s office Procedure & enforcement same as for mechanic s liens Other Liens (cont) Attorney (IC ) 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 ) 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 15

16 The End Morrie Erickson Attorney/Owner TitlePlus! Bloomington, IN 16