Appendix A : Methods Suggested for Clearing Objections to Title and Curative Acts

• Library: Standards for Examination of Real Estate Titles in Arkansas (2021 Ed.)

APPENDIX A: METHODS SUGGESTED FOR CLEARING OBJECTIONS TO TITLE AND CURATIVE ACTS

Advice on Curing Objections:

If a client does not know how to satisfy an objection or requirement set out in the examining attorney's opinion, the attorney should explain the possibilities available to the client and possible means of cure.

When the examiner questions marketable title or finds title defective and knows that another attorney has previously examined the same title or handled a questionable proceeding, the examiner may communicate with the previous examiner if the examiner deems the communication appropriate. Discussion, explanation, and correction often eliminate the need for an objection.

1. Correct the Recorded Instrument and Re-record It:

Any instrument that contains obvious scrivener's errors may be corrected and re-recorded. Where the change adds additional property to a description in a deed or mortgage, a new instrument should be obtained or the original instrument should be re-acknowledged. See Standard 4.10.

2. Obtain and Record a Deed:

Defects in the chain of a title may be cured by obtaining and recording a deed from the person or persons claiming or appearing to claim some outstanding interest in the property. Such deed may contain a recital of the purpose for which it is given. Any deed must be executed and acknowledged by both spouses.

Included in such defects might be erroneous designations of parties, legal descriptions, etc. in previous instruments. Such instruments may also be given to release rights of dower, curtesy, reverter, easements, etc.

CAVEAT: Before accepting an instrument in clearing a title, consideration should be given to any liens, judgments, or bankruptcy proceedings against the grantor or grantors.

3. Use Additional Words of Identification of Parties in Subsequent Instruments:

Subsequent deeds or mortgages may identify the grantor or mortgagor as being the same person already named of record under a different name, e.g. "John Jones, also known as Joseph J. Jones" or "Gertrude Brown, formerly Gertrude Smith, and Frank Brown, wife and husband."

4. Obtain and Record Affidavit:

When applicable, the examiner may authorize the recording of the following affidavits relating to parties of record:

a. Identity;
b. Death, or the time of death;⁴¹⁴
c. Marital status or relation;
d. Homestead status;
e. The relation as to service in the armed forces of the United States;
f. Identity of any corporation or other legal entity;
g. The authority of a trustee may be established by a certification of trust.⁴¹⁵
NOTES:

1. A drafter when preparing one of the foregoing recordable affidavits may often incorporate additional helpful, clarifying statements having the effect of assuring a purchaser of the existence of the facts that will answer or explain the objection raised, and make the title acceptable.
2. A legal description should be included in the affidavit.

5. Actions:

a. Lis Pendens. A lis pendens should be filed in connection with an action affecting title to real property. The lis pendens is filed with the recorder of deeds of the county judicial district in which the property to be affected by the notice is located

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