Fwd: [familylaw] Summary Real Estate and quit claim deeds / New Title Standard 84
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Becca Wong
May 14, 2013, 4:54:16 PM5/14/13
to familylawmini@googlegroups. com, Breakfast Club
Hi All:
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Bruce kindly consented to my sharing this with you all. Awesome!!
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From: Bruce D. Kennedy <bruceke...@comcast.net>
Date: Tue, May 14, 2013 at 11:13 AM
Subject: [familylaw] Summary Real Estate and quit claim deeds / New Title Standard 84
To: familylaw <fami...@lists.statebar.gen.mn.us>
Summary Real Estate and quit claim deeds / New Title Standard 84
We regularly see questions about the use of quitclaim deeds and Summary Real Estate Disposition Judgments to convey property in a dissolution of marriage proceeding.
I had many conversations with real estate attorneys about these issues as a member of the family law section legislative committee working on the Summary Real Estate statute. So I sorta get where they’re coming from.
My comments below relate to a situation where a home is owned jointly by spouses, and the divorce decree is intended to transfer the property to one spouse, who is your client.
Remember “chain of title” from first year law school Property class. Also, remember the distinction between conveying and recording.
Your goal is to ensure that your client has no problems with selling or refinancing the property down the road.
So you need to make sure that proper documents are recorded that establish three things:
One: the parties are divorced.
Two: the property was conveyed to your client.
Three: whether there has been a name change.
Numbers one and three can be proven by a decree, a Summary Real Estate Disposition Judgment, or Certificate of Dissolution (§518.148, if it also certifies the name change).
Number two can be proven by a decree, a Summary Real Estate Disposition Judgment, or a deed from one ex-spouse to the other.
So as you can see, a decree or a Summary Real Estate establishes all three things.
Sometimes the question is posted, is it a good idea to get a quitclaim deed? The answer is, it’s always better to have a properly executed quitclaim deed. The better questions are, how much trouble is it worth to obtain it, and is it worth the money to record it? Since the decree or the Summary Real Estate can convey property, the quitclaim deed is redundant. You can waste a lot of time trying to get an angry, uncooperative, or missing ex-spouse to sign and return a deed. So draft your decree so that it conveys the property upon entry and make the deed optional.
When your client goes to sell or refinance the property, perhaps years later, some attorney will review the documents that have been recorded. Depending on how picky this title examiner is, the absence of a quitclaim deed may prompt the examiner to review the divorce file to make sure that the pleadings were properly prepared and served, and that the legal description was consistently accurate, thus insuring that the court had the proper authority to convey the property. With a properly executed quitclaim deed, the examiner can skip that review. A deed can also calm any concerns when a property is sold or refinanced immediately after the divorce (within the time of appeal).
With Torrens property, the title examination is done when the documents are submitted for recording. Some Torrens offices are charging $100 for the review of the decree. It costs $46 to record a quitclaim deed. In those counties you are saving your client $54 by recording the deed along with the decree, Summary Real Estate, or Certificate of Dissolution.
Title Examiners refer to Title Standard 84 when evaluating these issues. There is a new version of 84 which incorporates 84A and adds a few new provisions. I have appended it to the end of this post.
Here are some drafting tips for MTAs and decree:
1. Avoid future controversy by getting the legal description accurate in the Petition and all subsequent documents. As a backup, state the accurate street address.
2. You never have to put the legal description in the Summons unless you are publishing the Summons as ordered by the court under §518.11 (c).
3. If you are representing the person who is going to continue to own the property, be very picky about the drafting. It is not that important to you if you are representing the person who is signing the property away.
4. Just award the property to your client. Period. Don’t make the conveyance contingent on an execution of a quitclaim deed. See IV A and B of the Title Standard below. Most attorneys follow option B when they should follow option A. You can require the ex-spouse to execute a deed on request without requiring that the deed transfer the property, e.g. “At Petitioner’s request, Respondent shall promptly execute and deliver to Petitioner a quitclaim deed which shall be prepared at Petitioner’s expense.”
Since a decree conveys the property, why do a Summary Real Estate? The Summary Real Estate is just a condensed version of the decree that contains the basic facts and the real estate provisions of the conclusions of law. It has no magic in transferring property beyond the decree, except arguably when there is a mistake in the legal description. The statute §518.191 Subd 2a provides for an amended summary real estate which can correct the legal description if property was sufficiently identified, for example by street address. Read that statute carefully if you ever have that issue, but remember it may be easier to cure a bad legal description if you can get a quitclaim deed from the ex-spouse.
Having already prepared, executed, and obtained a judgment and decree which proves all three elements (divorce, conveyance, and name change), it’s just extra work and expense to prepare, execute, and obtain a Summary Real Estate. Its main virtue is that it is short and does not contain personal and financial details that will be on display in another public record.
So in sum: (1) get an accurate legal from the start; (2) remember you need to prove dissolution, conveyance, and name change, (3) simply award the property to your client upon entry of the decree, (4) prepare a quit claim deed and send it to the other party but don’t spend a lot of time on follow through, (5) use a deed to correct a bad legal description, but if you can’t get it, then do an Amended Summary Real Estate, (6) prepare and record a Summary Real Estate instead of a decree if the decree contains information your client would not want in another public record, and (7) record your document(s) promptly after the dissolution is final to avoid the hassle of dealing with potential liens created by the ex-spouse that may arise after the divorce is final.
From Nate at Ramsey Torrens, here is his Good, Better, Best:
Abstract property: record J&D alone at minimum; SREDJ alone is better, either one with QCD better still, SREDJ with QCD best of all.
Torrens: record J&D or SREDJ with Examiner's Certificate minimum, either one with QCD best of all.
HERE IS THE NEW TITLE STANDARD:
STANDARD No. 84
Adopted June 23,1967.
Amended June 20, 1975, June 19, 1982, June 17, 1988,
June 14, 1991, June 20, 1997, and November 10,2012
DISPOSITION OF REAL PROPERTY INTERESTS IN DIVORCE OR DISSOLUTION OF MARRIAGE PROCEEDINGS
I. In all cases, a certified copy of the judgment and decree, summary real estate disposition judgment, or a certificate of dissolution must be recorded in the office of the county recorder in the case of abstract property, or recorded in the office of the registrar of titles in the case of registered property, to place of record the dissolution of the marriage.
II. An examiner should assume that the real property was marital property unless the records disclose otherwise. If the records disclose that the real property was nonmarital property and an interest is awarded to the nonowner spouse, the findings of fact supporting the judgment and decree shall comply with Minn. Stat. § 518.58, Subd. 2.
Authority: Searles v. Searles, 420 N.W.2d 581 (Minn. 1988); Minn. Stat. § 518.003, subd. 3b; Minn. Stat. § 518.145.
Ill. Title shall be passed if:
A. The judgment and decree or the summary real estate disposition judgment contains the legal description of the property;
and
B. Disposition of the property has been:
1. Stipulated to by legal description by the parties; or
2. Litigated after the appearance of the patties; or
3. Made in accordance with the request for relief by legal description contained in the petition; and
(a) Service of the summons and petition is made personally pursuant to Minn. R. Civ. P. 4.03 (a) or Minn. Stat. § 543.19; or
(b) Service of the summons containing the legal description is made by publication in the county in which the property is located pursuant to Minn. R. Civ. P. 4.04 and 4.041 or Minn. Stat. § 518.11 (c);
and
There is compliance with such further requirements as may be ordered by the court pursuant to Minn. Stat. § 518.11 (c).
Authority:
Corson v. Shoemaker, 55 Minn. 386,57 N .W. 134 (1893);
Pugsley v.Magerfleisch, 161 Minn. 246,201 N.W.323 (1924);
Haney v. Haney, 163 Minn. 114,203 N.W. 614 (1925);
Smithv.Smith, 123 Minn. 431, 144N.W.138 (1913);
Allegrew v.Allegrew, 236 Minn. 464,53 N.W. 2d 133
(1952); Minn Stat. §§ 518.148; 518.191; 518.58.
IV. A judgment and decree of divorce or dissolution or a summary real estate disposition judgment shall be sufficient to transfer title if the requirements in Ill, above, have been satisfied and:
A. The judgment and decree or summary real estate disposition judgment awards the real property to one party and does not require a deed from the other party; or
B. It awards the real property to one party and requires a deed from the other party, followed by language to the effect that it shall operate to pass title even if a deed is not given.
NOTE: A summary real estate disposition judgment, or an amended summary real estate disposition judgment that supersedes an earlier judgment, is prima facie evidence of the facts stated in the summary real estate disposition judgment.
Authority: Minn. Stat. § 518.191, subd. 4.
In the case of a divorce or dissolution judgment or decree granted by a court in another state or country, a deed from the former spouse must be recorded in the office of the county recorder in the case of abstract property or recorded in the office of the registrar of titles in the case of registered property.
Caveat: For registered property see Minn. Stat. §§ 508.59 and 508A.59.
Bruce D. Kennedy
2151 Hamline Avenue North #206
Roseville MN 55113
(651) 633-3713
---
FAMILYLAW is for Minnesota State Bar Association Family Law Section members. The subscribed address to which this email was sent is: beccaw...@gmail.com. You can unsubscribe by sending a blank email from that address to leave-familylaw@lists.statebar.gen.mn.us ;
If you do, please tell us why, so we can improve the list for other Section members.
From: Bruce D. Kennedy <bruceke...@comcast.net>
Date: Tue, May 14, 2013 at 11:13 AM
Subject: [familylaw] Summary Real Estate and quit claim deeds / New Title Standard 84
To: familylaw <fami...@lists.statebar.gen.mn.us>
Summary Real Estate and quit claim deeds / New Title Standard 84
We regularly see questions about the use of quitclaim deeds and Summary Real Estate Disposition Judgments to convey property in a dissolution of marriage proceeding.
I had many conversations with real estate attorneys about these issues as a member of the family law section legislative committee working on the Summary Real Estate statute. So I sorta get where they’re coming from.
My comments below relate to a situation where a home is owned jointly by spouses, and the divorce decree is intended to transfer the property to one spouse, who is your client.
Remember “chain of title” from first year law school Property class. Also, remember the distinction between conveying and recording.
Your goal is to ensure that your client has no problems with selling or refinancing the property down the road.
So you need to make sure that proper documents are recorded that establish three things:
One: the parties are divorced.
Two: the property was conveyed to your client.
Three: whether there has been a name change.
Numbers one and three can be proven by a decree, a Summary Real Estate Disposition Judgment, or Certificate of Dissolution (§518.148, if it also certifies the name change).
Number two can be proven by a decree, a Summary Real Estate Disposition Judgment, or a deed from one ex-spouse to the other.
So as you can see, a decree or a Summary Real Estate establishes all three things.
Sometimes the question is posted, is it a good idea to get a quitclaim deed? The answer is, it’s always better to have a properly executed quitclaim deed. The better questions are, how much trouble is it worth to obtain it, and is it worth the money to record it? Since the decree or the Summary Real Estate can convey property, the quitclaim deed is redundant. You can waste a lot of time trying to get an angry, uncooperative, or missing ex-spouse to sign and return a deed. So draft your decree so that it conveys the property upon entry and make the deed optional.
When your client goes to sell or refinance the property, perhaps years later, some attorney will review the documents that have been recorded. Depending on how picky this title examiner is, the absence of a quitclaim deed may prompt the examiner to review the divorce file to make sure that the pleadings were properly prepared and served, and that the legal description was consistently accurate, thus insuring that the court had the proper authority to convey the property. With a properly executed quitclaim deed, the examiner can skip that review. A deed can also calm any concerns when a property is sold or refinanced immediately after the divorce (within the time of appeal).
With Torrens property, the title examination is done when the documents are submitted for recording. Some Torrens offices are charging $100 for the review of the decree. It costs $46 to record a quitclaim deed. In those counties you are saving your client $54 by recording the deed along with the decree, Summary Real Estate, or Certificate of Dissolution.
Title Examiners refer to Title Standard 84 when evaluating these issues. There is a new version of 84 which incorporates 84A and adds a few new provisions. I have appended it to the end of this post.
Here are some drafting tips for MTAs and decree:
1. Avoid future controversy by getting the legal description accurate in the Petition and all subsequent documents. As a backup, state the accurate street address.
2. You never have to put the legal description in the Summons unless you are publishing the Summons as ordered by the court under §518.11 (c).
3. If you are representing the person who is going to continue to own the property, be very picky about the drafting. It is not that important to you if you are representing the person who is signing the property away.
4. Just award the property to your client. Period. Don’t make the conveyance contingent on an execution of a quitclaim deed. See IV A and B of the Title Standard below. Most attorneys follow option B when they should follow option A. You can require the ex-spouse to execute a deed on request without requiring that the deed transfer the property, e.g. “At Petitioner’s request, Respondent shall promptly execute and deliver to Petitioner a quitclaim deed which shall be prepared at Petitioner’s expense.”
Since a decree conveys the property, why do a Summary Real Estate? The Summary Real Estate is just a condensed version of the decree that contains the basic facts and the real estate provisions of the conclusions of law. It has no magic in transferring property beyond the decree, except arguably when there is a mistake in the legal description. The statute §518.191 Subd 2a provides for an amended summary real estate which can correct the legal description if property was sufficiently identified, for example by street address. Read that statute carefully if you ever have that issue, but remember it may be easier to cure a bad legal description if you can get a quitclaim deed from the ex-spouse.
Having already prepared, executed, and obtained a judgment and decree which proves all three elements (divorce, conveyance, and name change), it’s just extra work and expense to prepare, execute, and obtain a Summary Real Estate. Its main virtue is that it is short and does not contain personal and financial details that will be on display in another public record.
So in sum: (1) get an accurate legal from the start; (2) remember you need to prove dissolution, conveyance, and name change, (3) simply award the property to your client upon entry of the decree, (4) prepare a quit claim deed and send it to the other party but don’t spend a lot of time on follow through, (5) use a deed to correct a bad legal description, but if you can’t get it, then do an Amended Summary Real Estate, (6) prepare and record a Summary Real Estate instead of a decree if the decree contains information your client would not want in another public record, and (7) record your document(s) promptly after the dissolution is final to avoid the hassle of dealing with potential liens created by the ex-spouse that may arise after the divorce is final.
From Nate at Ramsey Torrens, here is his Good, Better, Best:
Abstract property: record J&D alone at minimum; SREDJ alone is better, either one with QCD better still, SREDJ with QCD best of all.
Torrens: record J&D or SREDJ with Examiner's Certificate minimum, either one with QCD best of all.
HERE IS THE NEW TITLE STANDARD:
STANDARD No. 84
Adopted June 23,1967.
Amended June 20, 1975, June 19, 1982, June 17, 1988,
June 14, 1991, June 20, 1997, and November 10,2012
DISPOSITION OF REAL PROPERTY INTERESTS IN DIVORCE OR DISSOLUTION OF MARRIAGE PROCEEDINGS
I. In all cases, a certified copy of the judgment and decree, summary real estate disposition judgment, or a certificate of dissolution must be recorded in the office of the county recorder in the case of abstract property, or recorded in the office of the registrar of titles in the case of registered property, to place of record the dissolution of the marriage.
II. An examiner should assume that the real property was marital property unless the records disclose otherwise. If the records disclose that the real property was nonmarital property and an interest is awarded to the nonowner spouse, the findings of fact supporting the judgment and decree shall comply with Minn. Stat. § 518.58, Subd. 2.
Authority: Searles v. Searles, 420 N.W.2d 581 (Minn. 1988); Minn. Stat. § 518.003, subd. 3b; Minn. Stat. § 518.145.
Ill. Title shall be passed if:
A. The judgment and decree or the summary real estate disposition judgment contains the legal description of the property;
and
B. Disposition of the property has been:
1. Stipulated to by legal description by the parties; or
2. Litigated after the appearance of the patties; or
3. Made in accordance with the request for relief by legal description contained in the petition; and
(a) Service of the summons and petition is made personally pursuant to Minn. R. Civ. P. 4.03 (a) or Minn. Stat. § 543.19; or
(b) Service of the summons containing the legal description is made by publication in the county in which the property is located pursuant to Minn. R. Civ. P. 4.04 and 4.041 or Minn. Stat. § 518.11 (c);
and
There is compliance with such further requirements as may be ordered by the court pursuant to Minn. Stat. § 518.11 (c).
Authority:
Corson v. Shoemaker, 55 Minn. 386,57 N .W. 134 (1893);
Pugsley v.Magerfleisch, 161 Minn. 246,201 N.W.323 (1924);
Haney v. Haney, 163 Minn. 114,203 N.W. 614 (1925);
Smithv.Smith, 123 Minn. 431, 144N.W.138 (1913);
Allegrew v.Allegrew, 236 Minn. 464,53 N.W. 2d 133
(1952); Minn Stat. §§ 518.148; 518.191; 518.58.
IV. A judgment and decree of divorce or dissolution or a summary real estate disposition judgment shall be sufficient to transfer title if the requirements in Ill, above, have been satisfied and:
A. The judgment and decree or summary real estate disposition judgment awards the real property to one party and does not require a deed from the other party; or
B. It awards the real property to one party and requires a deed from the other party, followed by language to the effect that it shall operate to pass title even if a deed is not given.
NOTE: A summary real estate disposition judgment, or an amended summary real estate disposition judgment that supersedes an earlier judgment, is prima facie evidence of the facts stated in the summary real estate disposition judgment.
Authority: Minn. Stat. § 518.191, subd. 4.
In the case of a divorce or dissolution judgment or decree granted by a court in another state or country, a deed from the former spouse must be recorded in the office of the county recorder in the case of abstract property or recorded in the office of the registrar of titles in the case of registered property.
Caveat: For registered property see Minn. Stat. §§ 508.59 and 508A.59.
Bruce D. Kennedy
2151 Hamline Avenue North #206
Roseville MN 55113
(651) 633-3713
---
FAMILYLAW is for Minnesota State Bar Association Family Law Section members. The subscribed address to which this email was sent is: beccaw...@gmail.com. You can unsubscribe by sending a blank email from that address to leave-familylaw@lists.statebar.gen.mn.us ;
If you do, please tell us why, so we can improve the list for other Section members.
Thanks ---
Becca
Becca Wong Family Law & Mediation LLC
3300 Edinborough Way, Suite 550
Edina, MN 55435
Confidentiality Notice: This message is being sent on behalf of an attorney. It is meant for the exclusive use of the intended recipient and may contain information that is privileged or confidential or otherwise legally exempt from disclosure. If you have received this message in error, please notify the sender immediately by email or by telephone at 612-300-1911 and delete all copies of this message.
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