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Bar News - January 14, 2011

Board Adopts 2010 Title Examination Standards

The NH Bar Association’s Board of Governors unanimously approved the recommended updates to the 2010 Title Examination Standards at its December meeting. The new standards take effect December 31, 2010.

The Title Standards reflect the real estate standard of practice when dealing with an established title in the registry of deeds. The Standards are not intended to be a "how to" guide on conducting a current transaction. See Standard 1-1: "Purpose. The objective of the title examiner is to determine whether or not the title in question is satisfactory of record..."

The 2010 Title Examination Standards are electronically accessible to Section Members on the Real Property Law Section page (login required) of the NH Bar Association website. Go to the Real Property Law Section Materials page, and then click on the link, "Title Standards" to view the Standards. The 2010 Title Examination Standards are presented online in a "Clean" version and in a "Redline" version (the 2009 version with deletions in redlined strikeouts and additions in blue underlines). The 2010 Standards are also available for public access on the NH Practice Guidelines page.

A Guide to the Revisions

To view all the revisions, see the "Redline" version posted on the Title Standards Page. Each Standard is assigned a title to make searching and identification of the contents easier. Each Standard is followed by a year, or years, in brackets. The year or years noted are the year that the Standard was first adopted and the year or years in which it was revised in substance, if any.

Any changes in the renumbering of Standards, although shown, have not been considered to warrant a revision date, nor have a few minor typographical errors and corrections.

New standards can be easily spotted as containing only one date: 2010. Copies of the 2010 "Clean" or "Redline" versions can be printed by the viewer if a hard copy is needed.

New changes to the Title Examination Standards can be easily searched online by using "2010" in the search field. The 2010 final clean version of the Standards is posted online along with the 2009 redlined version, for ease of reference in identifying the 2010 changes.

Highlights of Revisions

The 2010 Title Standards amend the 2009 Standards in a number of ways. Changes in statutes, case law and real estate practice have been noted. See, e.g., homestead and civil unions 5-4, 5-6 and 5-7 and civil union status 5-51, 6-1 and 6-2. Many standards have had case law or statutory annotations added. See, e.g., joint tenancy 5-13 and 5-14; trusts 5-16, 5-17, 5-18, 5-19, 5-20; current use 9-32 and hazardous and dilapidated building lien 9-39.

During the review and comment process, the Title Standards Committee addressed the proposed revisions to Standards 5-16 through 5-20 on trusts, questioning the need and/or propriety of a number of the revisions.

The revisions fell into two categories: revisions to existing Standards and new Standards.

A number of existing Standards were revised and amended:

  • Standard 2-1 concerning the period of a title search, was revised to also reflect consideration of other matters that may exist in the search period that may warrant additional inquiry and a cross reference to Standard 1-3.
  • Standard 5-26 was revised to correct a statutory cite: RSA 304-A:8, III in regards to general partnerships.
  • Standard 6-10 concerning foreclosure affidavits and notice of sale was revised to more adequately state the requirements of notice and affidavit. A second paragraph was revised to more clearly state the requirements of the Servicemembers Civil Relief Act and statements of facts.
  • Standard 7-19 concerning conveyances during probate administration provided an added applicable citation to RSA 559:19.
  • Standard 10-1 concerning recorded plans provided a caution to conveyancers concerning a plan recital to an easement with a citation to a recent case, Soukup v. Brooks, 159 N.H. 9 (2009).
The other category of revisions addressed three new Standards.
  • Standard 9-40 was created to address the creation of the new Housing Code Violation Liens that may be recorded by a public agency for costs for repairing code violations with reference to RSA 48-A:6 and 6a.
  • Standard 9-41 addresses the revisions made to RSA 356-B:46 effective January 1, 2011 which affect filing and priority of condominium assessment liens. RSA 53-F creates a notice of special assessment and lien for municipal loans related to the installation of clean energy improvements and Standard 9-42 creates a citation to the new lien.
Annual Standards Review Process

The Title Examination Standards were first adopted on February 5, 1954. Subsequent revisions were made and effective on February 9, 1963, January 1, 1974, June 1, 1980, January 1, 1988, January 1, 1990, January 1, 1997, July 15, 2007, December 31, 2008, December 31, 2009 and most recently on December 31, 2010.

As statutory and case law changes, subsequent reviews and revisions to the Standards are addressed annually using the discussions at Section meetings and on the ListServ as an online capability of the Real Property Law Section Materials page of the Bar website. In 1988, the Section created the Title Standards Committee as a standing committee to address revisions on a yearly basis; the annual review process was reinstituted in 2008.

The Committee meets regularly to review and discuss proposed changes, including suggestions sent directly to the Committee, raised at Section meetings or submitted electronically on the Real Property Listserve.

Suggestions for 2011 revisions may be posted on the Real Property Law Section Listserve with the Subject line: "2011 Title Standards Suggestions." The Committee monitors issues arising on the Listserv; at Section meetings or brought to its attention by individual Section members. The goal of the Committee’s annual review is to provide the Section each year with proposed revisions, if needed, in September on the Section’s ListServ and at the September Section meeting; opportunity for discussion and comment during a 30-day Comment Period ending in early October; further discussion and revision, if needed, at the October meeting and Section vote at the November Section meeting. The Section’s recommendations once approved are recommended to the Board of Governors for adoption at their next meeting in November or December with the adopted Standards effective as of December 31st.

Editor’s Note: The 2010 Title Standards Committee will present a morning panel discussion on April 6, 2010, which will feature a discussion of the most recent Title Standards. NHBA•CLE and the Real Property Section will co-sponsor the program at the Bar Center in Concord, from 9:00 a.m. to 12:15 p.m.

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