Section 1.55 Title Examination Standards of The Missouri Bar

• Library: Real Estate Fundamentals 2011 Forms

Caveat

The Property Law Committee of The Missouri Bar has not recently undertaken a review of the Standards. Counsel should conduct independent research regarding matters addressed by the Title Examination Standards. The author has included some suggested changes to the Standards. Those changes are indicated by bold text in brackets. No definite changes or modifications to these standards have been finalized. All statutory and case citations have been updated. As can be seen, some statutes have changed and some have been repealed. The effect of these changes is left to the reader to discern.

The author suggests that an excellent project would be the commission, by The Missouri Bar, possibly with title insurance company sponsorship, of a committee to review and rewrite the Title Examination Standards with the end result being their adoption as regulatory requirements for the state in much the same way as has been accomplished by other states, such as Oklahoma. For the curious, the Oklahoma Title Examination Standards were last updated in November 2008. Those standards can be ordered from the Oklahoma Bar Association by calling 800/522.8065.

Title Examination Standards of The Missouri Bar 1970 Revision, With Comments

1. Title, passed by prior examiner, attitude toward.

When an examiner finds a title which he believes should not be approved and has knowledge that another attorney has passed the title, the examiner, before writing an opinion, should communicate, if practical, with the other attorney and afford an opportunity for discussion and correction.

2. Requirements.

Objections and requirements should be made only when the irregularities or defects actually impair the title or can reasonably be expected to expose the purchaser or lender to the hazard of adverse claims, litigation, or additional abstracting expense.

3. Abstract, the certificate.

(a) The abstracter’s certificate should be substantially in the form of the Uniform Certificate adopted by the Missouri Land Title Association [;] it should not be limited to any specific person and should cover

(1) everything filed or entered in the public records of the county
or
(2) all matters filed of record, or proceedings in the offices of the recorder of deeds, clerk of the circuit court, the probate court of the county, the county clerk and the clerk of Federal Courts in those counties or cities in which the Federal Court sits, and all taxes general or special

(b) It is unnecessary that the Examiner require the entire abstract to be certified every time an extension is made for the purpose of examination; it is not a defect that at the date of the examination the statute of limitations may have run against some of the abstracters or there is no privity. However, an examiner should require complete recertification when, in his judgment, abstracting errors or omissions have occurred or when he has reason to question the accuracy of all or a particular portion of an abstract record

4. Marketable title.

If original title to land has emanated from the government, and all persons who appear in the abstract to have had any interest in the record title during the last forty-five years have conveyed to the last record owner or persons through whom he derives title, and it is established by affidavits or other instruments recorded and included in the abstract that he and the persons through whom he derives title have been in the continuous, open, exclusive and peaceable possession of the land for the last twenty-seven years, such last record owner should be deemed the holder of a marketable title.

If from the abstract or other information available to the examiner it appears that defects in the title prior to the forty-five-year period specified above, involve mortgages or deeds of trust not barred by Sec. 516.150, RSMo [2000], long term leases, mineral rights, party wall agreements, easements, etc., marital rights not barred by the Probate Code, future interest not subject to adverse possession, concurrent interest not subject to elimination by adverse possession, public, pious, or charitable uses, or ownership by the government, in which instances limitations will not run, or the protection of the Soldiers’ and Sailors’ Civil Relief Act, then the title should not be deemed marketable and appropriate requirements should be made.

5. Stray deeds or encumbrances.

A deed or encumbrance executed by a person who has no record interest, who is not in the chain of title and who is not in possession of the property described, without recitals establishing at least a prima facie interest, does not render the title defective, provided (1) the instrument has been of record at least ten years and (2) that the present claimant is in the actual physical possession of the property. If the deed or encumbrance was recorded within the last ten years, complete inquiry and investigation should be made so as to fully ascertain whether the Grantor was claiming under an unrecorded deed or contract of sale from a record owner, or some other interest not evident of record.

Comment: A recheck of the Recorder’s records or through the abstracter may disclose whether the Grantor in the stray instrument owned other property of similar description which was intended to be conveyed or encumbered by the stray instrument and that an error was made by the scrivener in the legal description. If the stray instrument has been of record for less than ten years it is recommended that further investigation be made as to any claim of rights by the Grantor and his Grantee in such stray deed. Where the stray instrument has been of record for more than ten years and actual physical possession of the property has been had by the record title owner and his predecessors and has been verified for ten years or more, further investigation is not deemed necessary. (Modifies 4 of the ’53 revision.)

6. Liens, not identified of record.

In the event reference is made in an instrument of record to a deed of trust or other lien and such reference cannot be reasonably identified with any deed of trust or other lien in the chain of title, the reference...