Basic Land Title Documents

Basics of Title

Welcome back and a happy Monday to all of you reading this in a timely fashion, as you should be. Last time I discussed the two major players in land title research, the landman and the title attorney. We are going to jump in today and talk about some of the general types of legal documents that you might see in a landman’s abstract of a parcel and some things to think about when looking at transfer of ownership for any sort of real property.

The basic types of documents you'll find in an abstract can first be broken down into the two categories: conveyances; and encumbrances. Conveyances include all of the basic instruments used to buy or sell land. The most basic type of document that you'll see is a Deed. A deed can come in many forms depending on the time period and specific jurisdictions in which the land being sold is located. This means sometimes, in the title of these documents, you'll see the added words "warranty" or "general warranty." The warranties that are being referred to are just fancy ways for the seller to guarantee that: they did in fact own the land they're selling, they're selling it as advertised without any surprises, and that they've disclosed any encumbrances (which we'll discuss in a moment). These are terms that were more prevalent in older deeds in times when it wasn't quite as established that these warranties are basic concepts that are implicit in any deed for land or property today. 

A couple of subsets also exist under these basic conveyance instruments, for things like quitclaim deeds and sheriff's deeds. A quitclaim deed is slightly different from a simple deed in that what is being conveyed is either an actual or potential interest in what the person conveying the interest, otherwise known as the grantor, actually holds. Basically, these are deeds which bar the grantor from ever coming back and claiming they hold some small interest in the property, and are owed some type of compensation for that interest. The other variation, known as a sheriff's deed, is a document executed by a sheriff to a buyer who acquired their interest in the land at a public auction, or sheriff's sale. These deeds typically follow the repossession of land to satisfy debts, unpaid taxes, or when there is no known party to whom the land interest can be conveyed when the previous owner died. 

That last point brings me to the next form of conveyances, which are those that occur following the death of the current owner. Typically, upon the death of a current owner the first place to look when determining how land will be conveyed is in the Last Will and Testament of the deceased. Wills are submitted into probate courts that verify the validity of the documents and oversee the administration of the estate through the Will's instructions. In an abstract in Pennsylvania, you'll not see any other documents of conveyance if there is a duly probated Will. The land will simply pass as per the instructions in the Will. However, in places like Ohio, you will see a little bit more. In Ohio, following probate of the Will the Court issues and records in the County Recorder's office a Certificate of Transfer. The certificate of transfer is just a reflection of what's actually in the Will, but makes it much easier for reviewers to see who was alive at the time of the Will being probated. Sometimes, in West Virginia especially, you'll see no conveyances and no Wills to indicate how the land was conveyed. These are instances where landmen have to dig deeper into documentation; to determine who was alive at the time and how many pieces the whole interest was broken into. 

The other major type of documents you will find in an abstract are referred to as encumbrances. Encumbrances are instruments which follow the conveyance of land, and may need to be satisfied and removed from the title in order to sell or lease the land. Typically, the types of encumbrances which need to be satisfied are instruments such as: mortgages, liens, tax burdens, and unreleased leases. For oil and gas purposes, the timing of when these documents were recorded is also quite important; and a topic for another discussion. In essence, when a party tries to sell land with a lien or mortgage on it, the buyer would have to either take on that mortgage themselves, pay the entire balance prior to the sale, or find some way to negotiate for the mortgage to remain in the interest of the seller. For oil and gas operators, the existence of debts and mortgages on land, when considering executing a lease, spells out potential complications later if someone comes to collect on debts that have gone unpaid for a period of time. An even bigger issue might arise if there is a lease on the land for oil and gas drilling which appears to be void because of low production. This situation might turn into a prolonged, costly court battle which could result in the loss of wells drilled on already leased land. 

For our purposes, the other major types of encumbrances are what could be considered more passive. Rights-of-way and easements are instruments which typically allow for the construction of infrastructure, for example: pipelines, telephone and electric systems, and highways. Easements, however, can take the form of whatever the parties wish to agree upon as being a required activity on the land. This might include something as simple as a walking path over someone's land for their children to cross after school, or something as major as a permanent roadway access across private land. For oil and gas activities, these are important when considering planning surface activities, placements of pipelines, and deciding whether to build new structures or simply acquire and utilize what's already in place. 

Of course these are not by any means all of the documents you might and will come across in an abstract. But these give you the basics about what each type of document can, and is doing when you look through that stack of papers. If you have any interest in learning more about this topic, continue following along, or consider picking up any number of publications from organizations like the AAPL. Next in this series we will be looking at the different types of interests that may be conveyed ,or created, in the conveyances of land title. In the mean time, look out for my next post, which will address a broader series of topics on water law and water quality topics.