I have a client that I have been working for since 2008. Great client and in her eyes I can do no wrong. She is the executor of 5 different trusts, the trustees being all family in some way. Each trust has different vesting, varying undivided interests and such. The trustees can never agree on anything and have even sued each other in the past. Talk about dysfunction…
The piece of property in question is a shopping center consisting of five parcels vested to different trusts. All are leased by commercial interests except one that is vacant. Back in 1990 something, development was proposed for what is now a fast food restaurant and a pharmacy across the street. Two creeks run through the property and after much him-&-haw by the city fathers, wetlands delineation and mitigation were put in place in order to develop the RiteAid and Taco Bell. Also, part of the mitigations was to be three parcels dedicated to the City for recreational purposes. On top of this, Lot Line Adjustments were to be performed to better accommodate the configuration of the resultant parcels after the dedications. Finally in 2001, the deeds for dedication and the LLA’s were drafted and executed by all of the trustees. However, someone dropped the ball and never recorded the new deeds. No dedications and No LLA’s of record.
Fast forward to 2008; I’m working for my previous employer as an LSIT. I get a call from my current client asking me for a proposal to do a Parcel Map. I begin the research process and for the life of me, I cannot understand what she is referring to as these “City Green-Belt Parcels”. Finally after six months or so of back and forth with the title co. we find copies of the executed but unrecorded dedication and LLA deeds. No originals to be found. Besides, vesting for the individual trusts are now completely different. A title nightmare, right?
Fast forward to 2009; I get licensed and am given to boot. As a parting gift, I get this project to “get me started”. I perform a proper field survey of the property, prepare the necessary documents to facilitate what should have taken place in 2001 and hand it all over to the city. Slam-Dunk, right?
The main parcel in the mix (grocery store and strip-mall) and the parcel that is now occupied by the fast food restaurant are ground leased by an LLC that is owned by an attorney, et al. The vacant parcel (in it's resultant configuration) previously mentioned is now being courted by a developer to install a new banking business. This new business will be in direct competition with the already established bank in the strip-mall subleased by the LLC. Since all of the leases involved in the dedication/LLA’s will need to be modified as well as loan modifications, the LLC, led by the attorney, now have a mechanism in which to stall out the process in an attempt to try and squeeze my client to sell the vacant parcel on the cheap. Let me remind you that the restaurant project (owned and developed by the LLC, located on ground owned by my client) is subject to the previously mentioned mitigations and is in violation thereof. Everything I have prepared for this project has come under scrutiny by this attorney in an attempt to stall the project. The big stall tactic has been the lease modifications and getting the bank on board with the loan modifications. The banking bean counters don't seem to understand that this is something that should have been done in 2001 and thus, there interests are in direct violation of the project mitigations put in place at the onset of this development.
This project is now going into its second city planner since I have been involved and the LLC is going through bankruptcy. We finally have City Counsel on board with what is going on and my client’s attorney is actively engaged with the bankruptcy lawyer to get this mess straightened out. I exist on the project only as a consultant at this point. Every so often I have to get everyone up to speed on what is going on, respond to the occasional email or straighten out someone somehow after they have been told repeatedly in the past.
On to the next project: Same thing across the street at the pharmacy/creek channel to be dedicated to the City.
PS: What are your thoughts as to deeds executed but not recorded?
I can feel your pain.....way over here!
People who do not promptly file documents are asking for trouble, as well proven in your case. I do not understand why they won't do it. It's hard to picture an enforceable statute that could be created to require such documents to filed within a certain time frame from the date on the document or it becomes null and void. Anything short of that would not work.
The comedians in the State legislature in my State are screwing around with mortgage filing fees right now. Certain lenders declare the current system that charges a healthy fee to file a new mortgage is unfair and discriminatory. They have plenty of money with which to grease the skids. The new plan, which is about to be finalized, will eliminate that fee and simply raise filing fees for all documents on a per page basis to make up the difference. Even in my podunk county those mortgage filings fees add up to a bit more than $100,000 per year added into the county bank account. To offset that amount with the new per page filing fees will require an abnormally high volume of filings each year. This will not happen.
At what price will people stop filing certain documents until they absolutely have to in order to do something specific. For example, why bother filing that deed if it's going to cost an arm and leg to do so? How will the filing rate decrease as the basic filing fee goes from $12 to $50 to $100 to $200? Dear ol' Dad wants to give his offspring an empty lot that wouldn't sell for much anyway. Will the new deed get filed if it costs $100 to do so? Same concept applies to small tracts being cut from one tract and added to another, whether by lot line agreement or other means. Now you may have two deeds to file. Will it happen?
Can't speak to CA, but here in VA we would have two issues to deal with:
1.) The DEEDS - provided they were properly signed and acknowledged at the time, they could still be recorded. Until they are recorded, they are basically toilet paper. OK - I know that is an over simplification, but you get my point. One time I found in a stack of my client's papers an unrecorded deed that was about 70 years old at the time. It got recorded and cleaned up a title issue.
2.) The approved PLATS - may or may not be valid. Many jurisdictions in VA have provisions in their ordinances that approved plats must be recorded within a specified time period. Most that have a time element are 6 months.
So, local and state laws should be what you are looking to and my comments above are worth exactly what you just paid for them. Nothing!
I see 2 important answers, both of which depend on the laws of your State.
The first issue is Title. We are a true race notice State. If it wasn't recorded it didn't happen. With no originals you cannot insert it into the record now.
The second issue is the value in any civil action. There are too many directons for that to go to post a valuable comment...
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Thank you for the input so far.
In the project's jurisdiction:
1) Project was applied for and fees paid
2) The local agency approves the project with mitigations
3) The Surveyor/Engineer prepares the descriptions to be used in the conveyance
4) Local agency prepares a document to be recorded stating that the project was approved by said agency and states the specific impacts and mitigations to said impacts
5) Title gets local agency document and records it
6) Title prepares new grant deeds for the dedicated and resultant LLA parcels and records them (simplified)
I suspect that the title co. fouled this one up and never followed through with recording. A title search never found the document the local agency (city) prepared. We could only find the city council's regular meeting approved minutes granting approval of the project. This could have been on the city, who knows... But, since the conveyance documents were prepared (by the TC), I believe that they had to have gone through the channels and were intended to be recorded.
Given that the documents were properly executed (and acknowledged), I am of the opinion that the conveyances took place, despite the fact that they were never recorded and that vesting of the parcels has undergone a couple of iterations since then (same trusts and mostly the same trustees); but we cannot find the originals to record. I don't think the powers that be would allow such a thing even if we had them anyways.
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The documents likely bind the parties to them. The big "BUT" is California is a race/notice state. If you have a bona fide purchaser without notice that could really gum up the works. I'm not sure what the rights are of the lenders who used the old descriptions without notice of the new ones.
I'd leave the Title determinations to the Title Company.
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Under Idaho Code a contract was likely made but the conveyance occurs at recording. Depending on what mechanism was used to transfer Title since you may be looking at a seriously expensive mess. If the original trust dissolved it could come down to whoever has claim to assets of the trust. Sounds like it could be interesting...
Around Here, Approved And Unrecorded Requires A Redo
Approval is only good for a certain time.
This may require all official meetings again.
Paul in PA
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In California recording is not required.
If A delivers a Deed to B then the transfer occurs. The problem occurs when A delivers a Deed to C for the same property and C does not know about B then If C records the Deed he wins the race. On the other hand If C knows about B then he is not a bona fide purchaser and it doesn't matter if he records first.
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> Under Idaho Code a contract was likely made but the conveyance occurs at recording. Depending on what mechanism was used to transfer Title since you may be looking at a seriously expensive mess. If the original trust dissolved it could come down to whoever has claim to assets of the trust. Sounds like it could be interesting...
That isn't exactly correct. A conveyance can occur without recording. Recording provides notice to subsequent interest holders.
Skvorak v. Security Union Title, 89 P.3d 856 (2004):
Recordation of a deed creates a rebuttable presumption of delivery. Hartley v. Stibor, 96 Idaho 157, 525 P.2d 352; Hiddleson v. Cahoon, 37 Idaho 142, 214 P. 1042 (1923); Idaho Trust Co. v. Eastman, 43 Idaho 142, 249 P. 890 (1926).
According to Bowers v. Cottrell, 15 Idaho 221, 228-29, 96 P. 936 (1908), "delivery {861} includes surrender and acceptance, and both are necessary to its completion." Also, "delivery must be the result of a contract, the meeting of two minds, the accord of two wills. The grantor must be willing and agree to deliver, and the grantee must be willing and consent to receive." Id. Further, "it is essential to the delivery of a deed that there be a giving of the deed by grantor and a receiving of the deed by the grantee, with a mutual intent to pass title from the one to the other."
IC 55-812. Unrecorded conveyance void against subsequent purchasers. Every conveyance of real property other than a lease for a term not exceeding one (1) year, is void as against any subsequent purchaser or mortgagee of the same property, or any part thereof, in good faith and for a valuable consideration, whose conveyance is first duly recorded.
If it was my client I would suggest that they go immediately to the Recorders Office and get the documents recorded.
Then get copies to the Title Companies and work from there.
Of course this should have been done before everyone else got involved.....
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That flaw in my knowledge base could have proven embarrassing. Thank you...
When I first saw the subject I thought gee this guy has a unique problem that few have ever had to deal with. Then I reread it and realized you said "away", not "awry":-D
> When I first saw the subject I thought gee this guy has a unique problem that few have ever had to deal with. Then I reread it and realized you said "away", not "awry":-D
Thanks Tom. That gave me a good chuckle after an exceptionally rough Monday.
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> In California recording is not required.
>
> If A delivers a Deed to B then the transfer occurs. The problem occurs when A delivers a Deed to C for the same property and C does not know about B then If C records the Deed he wins the race. On the other hand If C knows about B then he is not a bona fide purchaser and it doesn't matter if he records first.
I was with you until the last sentence. Out of curiosity, how does one go about proving C knew about B?
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> > In California recording is not required.
> >
> > If A delivers a Deed to B then the transfer occurs. The problem occurs when A delivers a Deed to C for the same property and C does not know about B then If C records the Deed he wins the race. On the other hand If C knows about B then he is not a bona fide purchaser and it doesn't matter if he records first.
>
>
> I was with you until the last sentence. Out of curiosity, how does one go about proving C knew about B?
It is a matter of notice. It is a matter in which evidence will be sought and evaluated that C knew of the transfer from A to B, or should have known.
