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Probate & Property Magazine


P R O B A T E   &   P R O P E R T Y
September/October 2008
Vol. 22 No.5

Keeping Current Property

Keeping Current—Property Editor: Prof. James C. Smith, University of Georgia, Athens, GA 30602, jim@uga.edu. Contributing editors: Prof. William G. Baker, Prof. Ronald Benton Brown, Prof. Matthew J. Festa, Prof. Shelby D. Green, Prof. Michael E. Lewyn, and Prof. John A. Lovett.

Keeping Current—Property offers a look at selected recent cases, literature, and legislation. The editors of Probate & Property welcome suggestions and contributions from readers.

Cases

BROKERS: Broker cannot recover commission or damages without written agreement. The buyer contacted the broker to obtain information on the availability of real estate for development. The broker identified a parcel not yet on the market, but which the broker believed the owner might be willing to sell. The buyer expressed interest, and the broker prepared a handwritten offer to purchase, which contained a term that the seller would pay the broker a 3% commission. The broker and the buyer had no written agreement about a commission. After the offer was submitted, negotiations between buyer and seller broke down. An agreement was reached after an attorney interceded, but for a parcel with different boundaries. When he learned of the sale, the broker brought suit for compensation for services performed based on fraud, implied contract, and quantum meruit. The court first affirmed the trial court’s ruling that the evidence failed to establish a finder’s fee agreement, which might have been enforceable even absent a writing. The statute of frauds bars recovery of a real estate commission based on an oral agreement. R.I. Gen. Laws § 9-1-4(6). The court ruled that the statute could not be circumvented by mere allegations of fraud and promissory estoppel. An oral agreement precludes recovery of a commission “irrespective of whether the action is based on contract, on quantum meruit for services rendered or on a theory of estoppel.” To allow such recovery would defeat the very purpose for which the statute was enacted, “specifically, protection against the assertion of unfounded claims.” Apart from the strong policy underlying the statute of frauds, the broker here was perhaps not the most sympathetic plaintiff. The sales price was $1 million, for a different parcel than the one originally identified by the broker, who by his own admission had spent only about eight hours on the proposed sale. Brochu v. Santis, 939 A.2d 449 (R.I. 2008).

COTENANTS: A joint tenancy is not severed when one joint tenant grants a security deed to secure payment of a debt. A brother and sister took title as joint tenants with the right of survivorship. Later the brother gave a security deed to a third party to secure repayment of a note. After the brother’s death, a dispute over the land arose between the surviving cotenant, the grantee, and the brother’s wife. The questions presented were (1) whether the security deed severed the joint tenancy and (2) if so, what effect severance had on the third party’s rights to the property. Both were questions of first impression that were answered by the court. Under a Georgia statute, a joint tenancy “may be severed as to the interest of any owner by the recording of an instrument which results in his lifetime transfer of all or a part of his interest.” Ga. Code § 44-6-190(a). Although the security deed did effect a transfer of the brother’s title, it was only intended to do so for the purpose of security, so for practical purposes it operated like a lien. Consequently, it did not sever the joint tenancy, and the surviving sister became the sole owner. So what interest did the grantee from the deceased brother have? Nothing! The security deed encumbered only the deceased brother’s interest, which ceased to exist when he was the first joint tenant to die. Biggers v. Crook, 656 S.E.2d 835 ( Ga. 2008).

EMINENT DOMAIN: Trial court does not lose jurisdiction over condemnation proceeding when state alters road-design plan after special commissioners’ hearing. The state filed a condemnation proceeding in state court to acquire a 0.3407-acre parcel as part of a project to widen a major street into a six-lane highway. The trial court appointed three special commissioners, who conducted an administrative hearing and assessed damages of $166,000. Both the state and the property owner appealed the award to the trial court. After the administrative hearing but before trial, the state changed its plan for striping and signing the road. The property owner argued that the new plan materially increased the burden on the property and that, because the new plan was not submitted before the administrative hearing, the trial court was divested of jurisdiction over the appeal. The trial court dismissed the case and awarded damages and discovery sanctions against the state. A unanimous state supreme court disagreed, holding that the trial court has jurisdiction to hear an appeal of an eminent domain administrative hearing regardless of the change in the state’s plan for the property. The court correctly noted that the state is not even required to mention its plans for the condemned property beyond stating the public purpose for which it intends to use the property—in this case, highway expansion. Just because the trial court hears an “appeal” from the administrative hearing does not mean that it functions as an “appellate court” and must rely on a fixed record from the hearing. Even though the trial court’s jurisdiction is “appellate” as distinguished from original or concurrent, the statute provides that an appeal of a condemnation award is tried to the state court de novo, and the administrative proceedings are not considered. Tex. Prop. Code § 21.018(b). Facts need not remain static before trial of an eminent domain action. PR Invs. & Specialty Retailers, Inc. v. State, 251 S.W.3d 472 ( Tex. 2008).

FREEDOM OF SPEECH: Public housing rule prohibiting the posting of signs on apartment doors violates tenants’ free speech rights. Seattle’s public housing authority issued a rule banning all signs, flyers, advertisements, and “similar material” from exterior walls, doors, and common areas in its public housing authority buildings. The authority explained that it enacted the rule for several purposes: to improve aesthetics, to avoid the costs of refinishing damaged doors, and to reduce hostility among residents caused by certain displays. A nonprofit organization of elected tenant representatives sued the authority, claiming that the rule violated residents’ free speech rights under the U.S. and state constitutions. In a five-to-four decision, the state supreme court affirmed the lower court’s grant of summary judgment enjoining the enforcement of the ordinance against signs on tenants’ apartment doors. The majority held that the exterior of the door is included as part of the leased premises, and as such becomes the property of the tenant during the term of the lease. Even though the leases were silent on the issue, the court found that the use of the door is necessary for ingress and egress and gives the tenant exclusive use of the apartment and therefore passes as appurtenant to the leased premises. Because the exterior of the door is the tenants’ property, the rule amounted to a government ban on all residential signs in the buildings. Applying “careful scrutiny,” the majority ruled that the authority failed to show that its purposes for the rule justified an overly broad restriction on speech; the majority noted that less restrictive measures could have been taken. The dissent argued that the authority did retain control over the exterior apartment doors and that the doors are a nonpublic forum to which the authority may apply reasonable, viewpoint-neutral rules restricting speech. Resident Action Council v. Seattle Hous. Auth., 174 P.3d 84 ( Wash. 2008).

HOMESTEAD : Homestead property is exempt from state drug-asset forfeiture statute. Based on a state drug-asset forfeiture statute, the government claimed homes owned by two convicted drug felons. Minn. Stat. § 609.5311(2). The homes were homestead property of the defendants, authorized by a state constitutional provision: “A reasonable amount of property shall be exempt from seizure or sale for the payment of any debt or liability.” Minn. Const. art. I, § 12. The court held the forfeiture statute unconstitutional based on a two-pronged analysis. First, the homestead exemption is to be liberally construed, and there was no reason not to apply it to the drug forfeiture situation. Second, forfeiture is “a harsh and disfavored penalty” that should be narrowly limited. A concurring opinion saw no need to reach the constitutional issue, calling for protection of the homesteads by statutory interpretation. The homestead exemption was more specific than the forfeiture statute, and when two statutes are in conflict, the specific statute controls. Torgelson v. Real Property Known as 17138 880th Ave., Renville County, 749 N.W.2d 24 ( Minn. 2008).

RECORDING ACTS: Purchaser at tax sale is bound by restriction on subdivision plat, even though sheriff’s deed did not mention restriction and plat was not recorded in the chain of title. Plaintiffs purchased two parcels at a tax sale with the idea of constructing single-family houses. Plaintiffs took the parcels subject to all existing restrictions of record. Before closing, plaintiffs ordered a title report and title policy. Neither the report nor the policy mentioned any restrictions. In fact, in 1962 when the town planning board approved a subdivision containing the parcels, it imposed the condition that the two parcels remain undeveloped. The words “open space” were written on the plat, which was filed with the town and with the county clerk. The plat, however, was not recorded in the chain of title. The parcels were sold when the original subdivider stopped paying taxes after the tax assessor, apparently ignorant of the restriction, increased the assessment from $7,500 to $47,500, noting on his records, “No reason for this very low value. Good Buildable Land.” A surveyor hired by plaintiffs relied in part on an examination of the 1962 plat but ignored the restriction and made no mention of it in his report. The building inspector issued a permit for construction based on this survey, but a new building inspector, cognizant of the restriction, issued a stop work order. The federal district court held that plaintiffs were bona fide purchasers for value without notice of the restriction, but the federal court of appeals reversed. It concluded that the plat approval and filing process complied with both N.Y. Town Law § 276(1) and N.Y. Real Property Law § 334, but neither statute addressed whether a subdivision plat was enforceable against subsequent purchasers. The court then certified the question to the New York Court of Appeals. The state court answered the certified question in the affirmative, rejecting plaintiffs’ argument that creation of the restriction was a “conveyance” of an interest to the town and was required to be recorded under N.Y. Real Property Law § 291 for protection against subsequent purchasers. The court explained that there was no express statutory requirement to record a plat in the chain of title and that a reasonable title search includes the subdivision plats filed in the county clerk’s office. Moreover, the tax map provided at the tax sale only showed two boundaries of the parcels, so to determine the exact land area involved it was necessary to find the filed plat that created the parcels. Examination of the plat would have revealed the restriction. On the larger policy concerns, the court commented that the ability to impose such restrictions on land use would be meaningless without the ability to enforce them against subsequent purchasers. The decision is a good one, particularly as it seems that sheer negligence, not unreasonable search burdens, explains the failure to learn of the restriction by so many persons in this case. O’Mara v. Town of Wappinger, 879 N.E.2d 148 (N.Y. 2007).

SALES CONTRACTS: Payment of purchase price and taxes for nearly 30 years constitutes part performance to take oral contract out of Statute of Frauds. In 1956, two individuals acquired New Hampshire real property as tenants in common. In 1975, one cotenant moved to Florida and asked the other cotenant (plaintiff) to buy out his interest. Plaintiff agreed and paid him $5,000, but they never signed a written contract memorializing their agreement. A few years later, however, the cotenant delivered two blank warranty deeds to plaintiff to convey his share of the property, but plaintiff never completed nor recorded the deeds. Since 1975 he paid all real property taxes. In 2004, many years after the cotenant’s death, plaintiff asked the cotenant’s children for a quitclaim deed to confirm their father’s sale of the land. They declined, prompting plaintiff to sue to quiet title. The court ruled that the blank deeds did not satisfy the statute of frauds because they omitted essential terms: the purchase price, identity of the parties, and the land description. Plaintiff asserted protection under the doctrine of part performance. Acknowledging the position taken in most jurisdictions that requires something more than the mere payment of the price, the court evaluated other acts in the context of a three-part test: (1) whether the acts were done in pursuance of the contract and in reasonable reliance thereon, without notice that the seller had already repudiated the contract; (2) whether the acts evidenced the existence of a contract and were not readily explainable on other grounds; and (3) whether the remedy of restitution was reasonably adequate. The court found that plaintiff had paid the purchase price and taxes after the cotenant offered to sell his share and in reliance on that offer. Because under Florida law, claims against a decedent or his estate must be brought within two years of death, plaintiff would be precluded from recovering the payment or sums expended for taxes. Finally, paying taxes for more than 30 years could not be explained by the fact that plaintiff was a cotenant because he paid the entire amount of taxes due and never exercised the right as a cotenant for contribution. Greene v. McLeod, 942 A.2d 1254 (N.H. 2008).

TITLE REGISTRATION: Purchaser of Torrens property lacks actual notice of unregistered easement, despite visible utility poles and lines on the property. Only a few states use land title registration, sometimes called the Torrens system. A 1936 deed granted an electric line easement. In 1944, the owner of the servient estate and a second, nearby parcel registered both parcels. By mistake, the easement was noted on the certificate of title for the wrong parcel. Later the servient estate was sold, with the purchaser getting a “clean” certificate of title. The electric company brought an action against the purchaser to amend the certificate to note the easement as an encumbrance. An unregistered encumbrance is not valid against any “subsequent purchaser of registered land taking a certificate of title for value and in good faith.” Mass. Gen. Laws ch. 185, § 46. Prior Massachusetts cases have interpreted “good faith” to mean that the purchaser must not have “actual notice” of unregistered encumbrances. The electric company argued that the purchaser actually knew of the easement because utility poles and lines were visible on her property, and they were connected to her house to supply power. The court found this “unpersuasive,” stating that the visible improvements only informed her that there “might [be] an easement.” Instead, proof of actual notice requires “some intelligible oral or written information that indicates the existence of an encumbrance.” The court’s test, which seems based on a distinction between circumstantial evidence and direct evidence, is open to question. Suppose the property had no poles or surface utility improvements, but the seller orally told the purchaser, “there’s a power easement on the property.” The purchaser might dismiss the statement because the certificate of title was clean, and she believed that the seller might be mistaken. In addition, many purchasers who are told about an “easement” would not understand the term’s significance unless a lawyer or other professional explained it. The court, to its credit, set a high bar for actual notice, but the line between actual notice and imputed notice (inquiry or constructive) is notoriously difficult to draw. A better outcome would have been to overrule the precedents, holding that a purchaser takes free of all unregistered encumbrances, whether or not the purchaser can be said to have “actual notice” of them. Commonwealth Electric Co. v. MacCardell, 876 N.E.2d 405 ( Mass. 2007).

WATER: Water rights acquired by prior appropriation are apportioned according to acreage after the land is subsequently subdivided. In the 1860s, the owner of a 300-acre tract of land constructed a ditch to appropriate water from a nearby river. In 1902 he obtained a judgment that confirmed he had acquired a specific amount of water by appropriation. A bank foreclosure in 1933 resulted in the sale of part of the tract (the “downslope parcel” of 158 acres) to a new owner. After this history of almost 150 years, a dispute arose over how to divide the water between the two parcels. The downslope parcel owner claimed it should be apportioned by percentages of acreage, and the owner of the upslope parcel claimed apportionment should be apportioned based on the amount of water actually used on each parcel in the years immediately preceding the foreclosure. The former prevailed. The right to water acquired by appropriation is appurtenant to land; and, according to the judgment recognizing that right, it was appurtenant to the entire tract, not any specific part of it. Neither the deed of trust nor the subsequent trustee’s deed even mentioned the water rights. Because no contrary intention was expressed, the foreclosure included the water rights, and the quantity of water was proportional to the acreage of the land conveyed. Nicoll v. Rudnick, 72 Cal. Rptr. 3d 879 (Ct. App. 2008).

ZONING: Neighboring landowner not entitled to judicial review of amendment to comprehensive plan map. A dairy and a neighboring golf course were both zoned A-1 agricultural, in which urbanization is declared to be inappropriate. The golf course owner asked the county planning and zoning commission to amend the comprehensive plan map to indicate that its land would be consistent with an A-2 agricultural zoning designation, which is for land that is changing from agricultural to more urban uses. When the county commissioners approved the request, the dairy owner petitioned for judicial review of the change in the comprehensive plan map. The dairy claimed that it would be harmed by a change allowing development on the adjacent land, relying on state law providing judicial review to an “affected person aggrieved by a decision.” Idaho Code § 67-6521(1)(d). The state supreme court held that the dairy was not entitled to judicial review because the change was merely to the comprehensive plan map, and not to the zoning ordinance itself. The change did not authorize any actual development that would affect the dairy’s interests because the comprehensive plan serves only as a guide to local government agencies making zoning decisions. The court held that statutory language requiring that the “zoning districts shall be in accordance with the policies set forth in the adopted comprehensive plan” does not mean that the change to the plan must immediately or automatically result in a change to the zoning. Idaho Code § 67-6511. This holding keeps Idaho in line with the majority of states, which do not require strict conformity between planning and zoning. Giltner Dairy, LLC v. Jerome County, 181 P.3d 1238 (Idaho 2008).

LITERATURE : Foreclosure Rescue and Equity Theft. The subprime mortgage crisis is now more than a year old and legal academics are beginning to assess the damage and explore ways to minimize negative effects on individual homeowner-borrowers and on communities. In her new article, Stealing the American Dream: Can Foreclosure-Rescue Companies Circumvent New Laws Designed to Protect Homeowners from Equity Theft?, 2007 Wis. L. Rev. 649, Prof. Creola Johnson addresses one of the saddest by-products of the subprime meltdown and resulting foreclosure surge—the rise of “foreclosure consultants” and “foreclosure rescuers.” These companies offer to help desperate homeowners avoid foreclosure sales by offering risky sale and leaseback agreements or sometimes totally fraudulent or illusory forms of help. Johnson first describes the various foreclosure scams and reviews research demonstrating just how vulnerable certain groups of borrowers—the elderly and recent immigrants, for instance—are to these fraudulent schemes. Johnson then reviews the legislative efforts by about nine states to date to offer borrowers some form of protection, typically the right of rescission and some minimal disclosure requirements. She suggests a number of additional steps states could take to strengthen regulation. Her chief proposed reforms are: stricter limitations on the amount of foreclosure consultation “fees,” establishing a minimum foreclosure purchase price of 82% of a home’s fair market value, requiring payment of any leftover equity to the borrower immediately after foreclosure, mandating disinterested third-party appraisals to determine minimum purchase prices, extending the time periods for repurchase options so that borrowers have a reasonable chance to improve their credit scores, and finally, prohibiting foreclosure consultants from promising unrealistic outcomes or services that are not likely to provide substantial benefit to the homeowner. In the most innovative portion of her article, Johnson also recommends adoption of an incentive-based disclosure system modeled on the federal government’s National Highway Traffic Safety Administration (NHTSA) tests for new vehicle safety. Under her proposed Foreclosure Intervention Services Assessment Program (FISAP), companies providing foreclosure consultation services would receive a green, yellow, or red rating based on their years of experience, success rate in preventing foreclosure, compliance with state laws, methods of delivering services, and the quality of their actual services. Such a rating system, particularly if combined with a 311 telephone assistance system through which homeowners could get reliable information about foreclosure services, might go a long way toward preventing the worst kinds of consulting abuse and might help some borrowers achieve reasonable workouts with their lenders and thus stay in their homes.

LEGISLATION: Arizona declares that private covenants in deeds are enforceable. Private covenants include any covenant, restriction, or condition regarding real property in any deed, contract, or agreement. The law appears to do away with common-law limitations on the enforceability of covenants. 2008 Ariz. Legis. Serv. 119.

Arizona regulates landlords who separately charge for utilities in recreational vehicle and mobile home parks. The law allows both submetering and allocation through a ratio utility billing system. The amount that the landlord may charge is limited, and the landlord is required to disclose administrative charges. 2008 Ariz. Legis. Serv. 96.

Colorado authorizes courts to award damages to owners who lose title to an adverse possessor. Damages are based on the actual value of the property as determined by the county assessor. Awards are to be made if the court determines that compensation would be fair and equitable. This law appears to change adverse possession into a forced purchase at current prices by an adverse possessor who has used the property for at least 18 years without interruption by the party losing title. 2008 Colo. Legis. Serv. 190.

Colorado clarifies governmental rights to oil and gas in easements obtained by condemnation. The value of oil, natural gas, and other mineral rights can affect substantially the government’s expense in acquiring a right-of-way or easement by condemnation. Potential government claims to such interests create tension between the fee owner and the state. Colorado has decided to negate the acquisition of oil, gas, and mineral rights in easements and rights-of-way, except when such interests are expressly included because they are necessary for subsurface support. 2008 Colo. Legis. Serv. 178.

Colorado modifies common-law joint tenancies. The statute allows one joint tenant to sever the tenancy unilaterally by executing a deed, as long as the deed is recorded. The interests in a joint tenancy may be unequal. Persons who obtain an interest in property held in joint tenancy may rely on a presumption of equality when they are without notice of different shares and have relied on a recorded instrument. 2008 Colo. Legis. Serv. 193.

Colorado establishes new requirements for filing and recording documents for a manufactured home that has become real property. A certificate of permanent location must be filed. Among other requirements, the certificate must contain a release from all holders of security interests in the manufactured home, the assent of all owners of the real property, and the assent of all owners of the manufactured home. Although it is easy to see why these assents are desirable, obtaining all of them could prove to be difficult. 2008 Colo. Legis. Serv. 140.

Colorado prohibits unreasonable restrictions on renewable energy generation devices. Such devices include wind-electric generators. The law is designed to limit objections based on aesthetics. Legal fees may be awarded to the party that prevails if litigation occurs. 2008 Colo. Legis. Serv. 175.

Connecticut adopts the Uniform Real Property Electronic Recording Act. The Act authorizes electronic signatures, filing, recording, and storage. Unfortunately for those who would like to see the world of real property recording move into the 21st century, adoption of the Act does not result in electronic recording. Many other barriers, statutory, regulatory, customary, and financial, must be breached before electronic recording becomes the norm in real estate transactions. The Uniform Real Property Electronic Recording Act has been adopted by at least 17 states. 2008 Conn. Acts 56.

Delaware prohibits retaliation by landlords against victims of domestic abuse. A tenant who is the victim of domestic abuse or sexual offenses and who reports the occurrence may not be subjected to eviction, rent increase, or a decrease in services by the landlord, unless the landlord has independent grounds for such action. 76 Del. Laws 219.

Florida regulates foreclosure-related rescue services and equity purchasers. Florida enacts legislation to prevent fraud and overreaching against borrowers who are in default on a debt secured by a security interest in residential real property. The Act imposes stringent requirements on those who attempt to profit through foreclosure services and equity purchases from the growing number of mortgage defaults. The law mandates written agreements and gives the homeowner three days to cancel the agreement. 2008 Fla. Laws ch. 79.

Florida limits the enforceability of transfer fee covenants. Such covenants are void and unenforceable as unreasonable restraints on alienation if they are recorded after July 1, 2008. The law excludes fees charged by property owners’ associations, including those governing condominium, cooperative, and mobile home communities. 2008 Fla. Laws ch. 35.

Georgia adopts the Uniform Environmental Covenants Act. Environmental covenants are established as an interest in real property. The covenants arise as a result of environmental remediation or mitigation that imposes activity and use limitations on the property. The covenant is perpetual, unless otherwise specifically limited. It attaches to the property, runs with the land, and cannot be extinguished except in accordance with its terms. Such covenants must be recorded and approved by the state Department of Environmental Protection or the relevant federal agency. The Uniform Environmental Covenants Act has been adopted by at least 21 states. 2008 Ga. Laws 794.

Georgia prohibits the foreclosure of small liens arising under the condominium act and the property owners’ association act. A lien must secure a debt that exceeds $2,000 before foreclosure becomes a permissible remedy. 2008 Ga. Laws 776.

Hawaii allows planned communities and planned community associations that were created before the enactment of statutory planned communities to restate their association documents to become subject to the acts. The law will enable planned community associations to take advantage of the statutes to enforce assessments and restrictive covenants. 2008 Haw. Sess. Laws 70.

Iowa requires private sewage disposal systems to be inspected before transfer by sale. Systems that do not meet current codes must be updated before recording the transfer. Provisions are made for cold weather transfers. This method has proved to be an effective and politically acceptable technique to upgrade private sewage disposal in a number of jurisdictions. 2008 Iowa Legis. Serv. 261.

Kentucky adopts the Kentucky Residential Mortgage Fraud Act. Kentucky enacts legislation to prevent fraud and overreaching by mortgagors as part of the mortgage lending process involving a debt secured by an interest in residential real property. 2008 Ky. Acts 175.

Maine enacts the Foreclosure Purchasers Act. Like many other jurisdictions, Maine has enacted legislation to prevent fraud and overreaching against mortgagors who are in default on a debt secured by an interest in residential real property. The Act imposes stringent requirements, including disclosure and right to cancel for five days, on those who attempt to profit from the growing number of mortgage defaults. 2007 Me. Laws 596.

Maryland passes the Maryland Mortgage Fraud Protection Act. The Act imposes substantial criminal penalties along with stringent requirements on mortgagors and others who are part of the mortgage lending process involving a debt secured by a security interest in residential real property. 2008 Md. Laws 3.

Minnesota allows the expungement of eviction records for tenants who lose their tenancy as a result of a foreclosure. 2008 Minn. Laws 174.

Oklahoma adopts the Nontestamentary Transfer of Property Act. A transfer-on-death deed, known as a beneficiary deed in other jurisdictions, is revocable until the death of the grantor. 2008 Okla. Sess. Laws 78.

Oklahoma enacts the Uniform Real Property Electronic Recording Act. The Act authorizes electronic signatures, filing, recording, and storage. Unfortunately for those who would like to see the world of real property recording move into the 21st century, adoption of the Act does not result in electronic recording. Many other barriers, statutory, regulatory, customary, and financial, must be breached before electronic recording becomes the norm in real estate transactions. At least 17 jurisdictions have now enacted this uniform law. 2008 Okla. Sess. Laws 295.

Tennessee enacts the Tennessee Condominium Act of 2008. Condominiums existing before the effective date of the new law may elect to be governed by its provisions by amending and restating their then existing master deed. 2008 Tenn. Pub. Acts 766.

Vermont limits actions to challenge the validity of recorded instruments. This title curative statute has a new three-year limitation that applies to certain errors, including defective acknowledgements, errors in the date of execution, missing or improper statements of consideration, and improper references to or recording of powers of attorney. 2008 Vt. Acts & Resolves 177.

Virginia substantially revises common interest communities. Among other changes, the new law establishes a common interest community management recovery fund and adds new contract disclosure requirements. 2008 Va. Acts 851.

Virginia authorizes electronic filing of land records. The clerk may establish a network or system for electronic filing of land records in accordance with the Uniform Real Property Electronic Recording Act. Many jurisdictions have adopted the Uniform Real Property Electronic Recording Act, but few have implemented true electronic filing. 2008 Va. Acts 823.

Wisconsin mandates electronic filing for real estate transfer returns. The contents of the returns, other than Social Security numbers and telephone numbers, will be subject to public disclosure. 2007 Wis. Laws 219.


P R O B A T E   &   P R O P E R T Y
September/October 2008
Vol. 22 No.5