July 19, 2016

We interrupt your regularly scheduled article for some breaking news…

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John A. Thomason
Member, Stoll Keenon Ogden PLLC

In the May installment, I made reference to 20 Pa. C. S. Chapter 35, Section 3546, the mandated judicial proceeding (outside of an administered estate) to determine heirship in Pennsylvania. In the absence of an administered estate in Pennsylvania, record title does not move forward in the chain until and how a Court says that it does.

On July 8, the Governor signed into law a bill amending section 3546. While these amendments are aimed primarily at clarifying the existing law, the amended Section does mandate certain additional steps in the process, including additional advertising and the filing of a notice of lis pendens before any Order can be entered. Please note that we have recommended use of this section when you are seeking marketable (as opposed to defensible) title. Please contact us with any questions.

And now back to our regularly scheduled article.

Curative Recommendations 

As previously discussed, a title opinion sets forth ownership of a tract subject to (a) general limitations, (b) general title defects, and (c) specific title defects. General limitations protect the author against matters outside the public record and defects in the materials examined that form the basis for the opinion. General title defects set forth agreed-upon assumptions regarding commonplace defects and potential defects. Specific defects are those specific to the tract examined that are sufficiently significant or recent to merit a recommended course of action to cure.

Over nearly 50 years, our Mineral Practice group has developed guidelines regarding curative recommendations offered in response to specific title defects. These guidelines have evolved over time based on the following principles:

Never “require” anything. The purpose of a title opinion, ultimately, is to avoid an accusation of intentional trespass or bad faith trespass. If we require you to take a specific course of action to cure a title defect and you choose not to, you’ve just admitted to either intentional trespass or bad faith trespass. If we recommend that you to take a specific course of action to cure a title defect and you choose not to, it’s because you made a business decision to assume the risk, but you still have defensible title.

Reach a clear understanding what can be considered a general title defect. General title defects are agreed-upon assumptions regarding commonplace defects and potential defects. When we begin working with a new client, we try to establish, within that client’s level of comfort, a clear understanding of the defects we can ignore. For example, no sane person wants to consider whether to file an affidavit of death for someone who only had a life estate and was married in 1870. A curative recommendation of this sort is a waste of time both for the attorney and, more importantly, the client. If we can work with the new client to determine what we need to mention and what is, for all intents and purposes, irrelevant to the process, the result is a more streamlined and functional work product.

Keep it simple. The general structure of a curative recommendation title is to re-state the facts, identify the problem and make alternate recommendations of different levels of caution for the client to select. A client does not want to have to re-read the opinion to understand the problem and assess the risk. We strive for curative recommendations that explain the problem and the solutions as simply as possible.  Our position on this is that if we can’t explain the problem plainly and simply, we don’t understand the problem well enough to make recommendations.

Make sure your law is up to date. This one is obvious, but we wouldn’t want you to think it wasn’t one of our guidelines.

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