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10 Most Common Title Curative Issues

Posted 10:30 AM, June, 30th 2014 by Manning Wolfe & filed under Blog, Legal

Definition:  Title curative is a set of procedures used to “cure” defects in chains of title, such as correcting instruments that are erroneous or ambiguous.  The process is focused on whether the actual use and possession of the land under review is consistent with record title. Once ownership is established, an attorney often memorializes title information in a Title Opinion.  Unresolved items in the Title Opinion may result in the necessity of curing such issues.

Research:  A variety of problems can arise during the title curative process.  Landmen usually obtain the necessary documents, if available, to satisfy the requirements of the examining attorney.  If documents are not available, research may provide enough information for the title attorney to make assumptions to qualify the opinion with regard to each questionable title issue.

1. Land Descriptions – the land must be described in the lease or deed in a form consistent with the requirements of each jurisdiction.

 

2. Recordation – the document to be recorded must have the elements required by the particular county in which it is recorded.

 

3. Failure of Acknowledgments – if the acknowledgment is not in the correct form, the document may be deemed to be executed.

 

4. Death, Wills, Intestacy, etc. – the testamentary documents must show the testator's intent sufficiently to convey title to the new owner in the chain.

 

5. Marital Interests, Divorce Decrees, etc. – the decree of divorce must specifically transfer title through the family court, and be properly filed of record, or a quit claim deed obtained from the spouse not in ownership to relinquish any claim on title.  In community property states, both spouses may be required to execute conveyancing documents even in the event of separate property ownership.

 

6. Joint Tenancies, Life Estates, etc. – ownership under special circumstances must be addressed and conveyed in the proper capacity.  In the case of Life Estates, it may need to be established that the person holding the estate is in fact deceased.

 

7. Unreleased Oil and Gas Leases – each jurisdiction’s rules must be followed as to whether an oil and gas lease must be specifically released or whether they are self-releasing, released after a date certain, etc.

 

8. Mortgages, Tax Liens, etc. – liens which have not been released may need to be verified.  In the case of mortgages, a takedown schedule may release portions of the property on a defined schedule or by sequential partial releases.

 

9. Company Conveyances, Corporations, Partnerships, Mergers, etc. – the appropriate company executive must execute any conveyancing documents, and in the case of a merger or acquisition, the merger documents may need to be filed of record to chain title even though they may be of record in the state of incorporation.

 

10. HBP (Held by Production) Leases – if HBP clauses are included in the lease, the records of the state governing agency may need to be researched in order to verify whether production has continued for the designated period of time.


Curative Statutes:  A title examiner needs to be familiar with all of the standard curative statutes of the state where the lands lie, as well as court rulings governing title. These statutes and rulings may resolve problems that appear in the chain of title without further action on the part of the landman or attorney.

For example:

In Colorado the statute provides that a deed of trust or mortgage more than 15 years past its due date is deemed released of record.

In Oklahoma, if there is a defect or omission in an acknowledgment, it shall be considered valid and not impair marketability, provided the instrument has been recorded for a period of not less than five years.

In Texas, statute provides that an examiner may presume that differently spelled names refer to the same person when the names sound alike or when their sounds cannot be distinguished easily or when common usage by corruption or abbreviation has made their pronunciation identical.

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