Bill Details - HB601 (2019)

HB 601 - AS INTRODUCED

 

 

2019 SESSION

19-0648

10/04

 

HOUSE BILL 601

 

AN ACT establishing an assurance deed and procedures therefor.

 

SPONSORS: Rep. Williams, Hills. 4

 

COMMITTEE: Commerce and Consumer Affairs

 

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ANALYSIS

 

This bill establishes an assurance deed and the procedures and requirements for granting marketable title for the conveyance of legal ownership in real property using an assurance deed.  The bill also modifies a provision for the limitation on undischarged mortgages.

 

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Explanation: Matter added to current law appears in bold italics.

Matter removed from current law appears [in brackets and struckthrough.]

Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.

19-0648

10/04

 

STATE OF NEW HAMPSHIRE

 

In the Year of Our Lord Two Thousand Nineteen

 

AN ACT establishing an assurance deed and procedures therefor.

 

Be it Enacted by the Senate and House of Representatives in General Court convened:

 

1  New Subdivision; Assurance Deed.  Amend RSA 477 by inserting after section 52 the following new subdivision:

Assurance Deed

477:53  Definitions.  In this subdivision:

I.  “Applicant” means the rightful landowner that elects to convey his or her legal ownership in land by assurance deed to an irrevocable trust as legal owner, the trust and the terms of the trust formed and administered in compliance with RSA 564-B.

II.  “Assurance deed” means a conveyance instrument to grant a marketable title with full covenants as defined in this section, in writing, with title insurance sufficient to defend the marketability of the real estate, to include any lien, or right to a lien, for services, labor, or material heretofore or hereafter furnished, imposed by law and not shown in the public records.

III.  “Assurance deed application” means the assemblage of documents providing relevant and reliable historical evidence in support of a public claim that the applicant rightfully owns a specific land area subject to specified interests of record.

IV.  “Assurance deed survey” means a survey and plan prepared by a licensed land surveyor that meets or exceeds the requirements established in administrative rules of the board of land surveyors in Lan 500.

V.  “Certified mail” means any notice by the United States Postal Service that it certifies delivery to a designated recipient evidenced by a return receipt denoting a restricted delivery, signed by the addressee only.  The petitioner shall file within the assurance deed application the return receipt for each mailing of notice as proof of service.

VI.  "Conveyance" means a transfer of real estate other than by will or operation of law.

VII.  "Document" means a writing, plat, or map, and includes information in electronic, mechanical, or magnetic storage; microfilm; electronic data transmission signals; and other media that can be converted into a legible writing, plat, or map by a machine or device.

VIII.  "Effective date of source of title" means the date on which the source of title becomes a matter of record.

IX.  “Full covenants” means covenants which assure the grantee:

(a)  The grantor is lawfully seized in fee simple of the property except as set forth in the deed;

(b)  The grantor has the right to convey the property to the grantee;

(c)  The property is conveyed without encumbrances, except those in force prior to the assurance deed application and as set forth in the deed;

(d)  The grantor has done no act to encumber the property except as set forth in the application or the assurance deed;

(e)  The grantee shall have quiet possession of the property; and

(f)  The grantor has executed title insurance that indemnifies land title marketability.

X.  "Indefinite reference” means:

(a)  A recital contained in a deed or other instrument of conveyance indicating directly or by implication that real estate may be subject to restrictions, easement, mortgages, encumbrances, or other interests not created by instruments recorded in due course, or for which no recorded information is obtainable.

(b)  A recital or indication affecting a description of real estate which by excluding generally real estate previously conveyed or by being in general terms of a person's right, title, or interest, or for any other reason, can be construed to refer in a manner limiting the real estate described to any interest not created by instruments recorded in due course.

(c)  A description of a person as trustee or an indication that a person is acting as trustee, unless the instrument containing the description or indication either sets forth the terms of the trust or specifies a recorded instrument which sets forth its terms and the place in the public records where such instrument is recorded.

(d)  Any other reference to any interest in real estate, unless the instrument containing the reference either creates the interest referred to or specifies a recorded instrument by which the interest is created and the place in the public records where such interest is recorded.

XI.  “Landowner” means a person, as defined, holding legal ownership in a specific land title.

XII.  "Law" includes statutes, case law, administrative actions, and legislative acts of local governments.

XIII.  “Licensed land surveyor” means a land surveyor educated in the basic principles of mathematics, the related physical and applied sciences, and the relevant requirements of law for adequate evidence and all requisite to the surveying of real property and engaged in the practice of land surveying duly licensed pursuant to RSA 310-A:67.

XIV.  "Municipal notice” means notice by certified mail to the municipality in which the land is located.

XV.  "Marketable record title" means a title of record, complying with RSA 477:56 that is free and clear of interests and claims existing before the effective date of the source of title.

XVI.  "Notice'' means any publication required by law to advertise a concise summary or description of information pertaining to an assurance deed application.

XVII.  "Opinion'' means a professional judgment founded upon adequate knowledge of fact, upon a background of technical competence in the subject matter, and upon honest conviction of the completeness, accuracy, propriety and quality of research and information.

XVIII.  “Petitioner” means an attorney admitted to practice as defined in RSA 311, having met current continuing educational requirements of the New Hampshire Bar Association, engaged to research and certify an assurance deed on behalf of an applicant.  A petitioner shall provide each applicant, who shall be the named insured, a certificate of insurance coverage for errors and omission in an amount not less than $1,000,000 per claim.

XIX.  "Person" means an individual, corporation, business trust, estate, trust, partnership, association, joint venture, government, governmental subdivision or agency, or other legal or commercial entity.  In the case of a trust managed by a trustee serving as a fiduciary or a land trust, however, the term means the beneficiary of the trust rather than the trust or the trustee.

XX.  “Publication” means advertising of notice in any number of newspapers having suitable distribution as defined in this section.

XXI.  "Real estate" means an estate or interest in, over, or under land, including minerals, structures, fixtures, and other things that by custom, usage, or law pass with a conveyance of land though not described or mentioned in the contract of sale or instrument of conveyance and, if appropriate to the context, the land in which the interest is claimed.  The term includes rents and the interest of a landlord or tenant.

XXII.  "Record," used as a verb, means to present to the recording officer for the place in which the land is situated, a document that the recording officer accepts and either enters in a daily log or notes thereon an identifying number.  Regardless of applicable law the recording officer is directed to file the document or otherwise to maintain a record of it.  "Recorded" and "recording" have corresponding meanings as set forth in RSA 478.

XXIII.  "Record chain of title" means the series of recorded documents creating or evidencing rights of the successive holders of title to real estate.

XXIV.  "Record location" means the location by book and page, document number, electronic retrieval code, or other specific place of a document in the public records accessible in this state or in the registry of deeds for the county or counties in which the real estate lies where the document containing the reference to the location is found.

XXV.  “Registered asset identifier” means a Universal Transverse Mercator coordinate for geographic indexing that is accurate to one square meter and meets standards set by the National Imagery and Mapping Agency as amended, situated and established by a licensed land surveyor within the property boundary as defined by deed that in the professional opinion of the land surveyor is accurate.

XXVI.  "Signed" includes the use of a symbol executed or adopted by a party with present intention to authenticate a writing.

XXVII.  "Source of title" means a conveyance or other title transaction, whether or not it is a nullity, in the record chain of title of a person, purporting to create or containing language sufficient to transfer the interest claimed by that person, upon which that person relies as a basis for marketability of title, and which was the most recent to be recorded as of a date 40 years before the time marketability is being determined.

XXVIII.  "Title" means the right to an interest in real estate, including an equitable interest, the interest of an owner, lessee, possessor, lienor, owner of an easement, holder of a security interest, and beneficiary of a restriction.

XXIX.  "Title transaction" means a transaction purporting to affect title to real estate, including title by will or descent, by tax deed, by trustee's, referee's, guardian's, executor's, administrator's, master in chancery's, or sheriff's deed, by decree of a court, by warranty deed, by quitclaim deed, and by a mortgage or a security interest or instrument.

XXX.  "Utility easement" means an easement (a) of way for a railroad, subway, street railway, or trolley bus line; (b) for the transmission line for the transmission of electricity, electronic communications, water, oil, gas, or other goods; (c) for sewerage or drainage; or (d) for similar utility uses.

XXXI.  "Writing" includes printing; typewriting; electronic, mechanical, or magnetic storage; microfilm; electronic data transmission signals; and any other intentional reduction of language to tangible form that can be converted into legible form by a machine or device.

477:54  Assurance Deed; Applicability.

I.  An assurance deed is a statutory instrument against any claim of title based upon a source of title, which source has then been of record at least 40 years, where no action affecting the possession or title of any real estate granted by assurance deed shall be commenced by a person, partnership, corporation, other legal entity, state, or any political division thereof, to enforce any right, claim, interest, encumbrance, or lien founded upon any instrument, event, or transaction which was executed or occurred more than 40 years prior to the commencement of such action, unless within 40 years after such execution or occurrence there has been recorded in the office of the register in the county in which the real estate affected is situated, a notice sworn to by the claimant or the claimant's agent or attorney setting forth the name of the claimant, a description of the real estate affected and of the instrument, event, or transaction on which such claim is founded, and stating whether the right, claim, interest, encumbrance, or lien is mature or immature.  If such notice relates to vested or contingent rights claimed under a condition subsequent or restriction it shall affirmatively show why such condition or restriction is not, or has not become nominal so that it may be disregarded when any covenants, conditions, restrictions, or extensions thereof annexed to a grant, devise, or conveyance of land are, or shall become, merely nominal, and of no actual and substantial benefit to the party or parties to whom or in whose favor they are to be performed, they may be wholly disregarded; and a failure to perform the same shall in no case operate as a basis of forfeiture of the lands subject thereto.

II.(a)  This subdivision shall apply to every right, claim, interest, encumbrance, or lien founded by any instrument, event, or transaction that is at least 40 years old.

(b)  This subdivision applies to repurchase options or other rights of repurchase that encumber an interest in land based upon an instrument other than a deed of conveyance granted by a governmental body, agency, or subdivision, unless within 40 years of the recording of the instrument a notice is recorded.  This subparagraph does not revive repurchase options or rights of repurchase barred by paragraph I.

(c)  This subdivision does not apply to actions to enforce rights, claims, interests, encumbrances, or liens arising out of private covenants, conditions, or restrictions.

III.  This subdivision does not extend the right to commence any action beyond the date at which such right would be extinguished by any other statute.

IV.  County registers of deeds are hereby directed to accept for recording notices conforming with the provisions hereof, and to charge therefor fees corresponding with the fees charged for recording notices of lis pendens of similar length.  Such notices may be discharged in the same manner as notices of lis pendens, and, when so discharged, shall, together with all information included therein, cease to constitute either actual or constructive notice.

V.  Any claimant under any instrument, event, or transaction barred by the provisions of this subdivision shall be conclusively presumed to have abandoned all right, claim, interest, encumbrance, or lien based upon such instrument, event, or transaction; and the title in the name of any adverse claimant to the real estate which would otherwise be affected thereby shall not be deemed unmarketable by reason of the existence of such instrument, event, or transaction; it being hereby declared as the policy of the state of New Hampshire that, except as herein provided, ancient records shall not fetter the marketability of real estate.

VI.  This subdivision shall not affect any rights of the federal government; nor increase the effect as notice, actual or constructive, of any instrument now of record; nor bar the rights of any person, partnership, or corporation in possession of real estate.  This subdivision shall not impair the record title or record interest, or title obtained by or through any congressional or legislative grant, of any railroad corporation or other public service corporation or any trustee or receiver thereof or of any educational or religious corporation in any real estate by reason of any failure to record further evidence of such title or interest even though the record thereof is now or hereafter more than 40 years old; nor shall this section require the recording of any notice as provided for in this subdivision as to any undischarged mortgage or deed of trust executed by any such corporation or any trustee or receiver thereof or to any claim or action founded upon any such undischarged mortgage or deed of trust.  The exceptions of this section shall not include: (a) reservations or exceptions of land for right-of-way or other railroad purposes contained in deeds of conveyance made by a railroad company or by trustees or receivers thereof, unless said reserved or excepted land shall have been put to railroad use within 40 years after the date of said deeds of conveyance, nor (b) any rights under any conditions subsequent or restrictions contained in any such deeds of conveyance.

VII.  The source of title shall be any deed, judgment, decree, sheriff's certificate, or other instrument which transfers or confirms, or purports to transfer or confirm, a fee simple title to real estate, including any such instrument which purports to transfer, or to confirm the transfer of a fee simple title from a person who was not the record owner of the real estate.  However, any such instrument which purports to transfer, or to confirm the transfer of a fee simple title from a person who was not the record owner of the real estate to the grantee or transferee named in such instrument, shall be deemed a source of title "of record at least 40 years" only if, during the period of 40 years after it was recorded, the following 2 conditions are fulfilled:  (a) another instrument was recorded which purports to transfer a fee simple title from said grantee or transferee to another person and (b) no instruments were recorded which purport to be or confirm a transfer of any interest in the real estate by or from whoever was the record owner in fee simple immediately before the commencement of said period of 40 years.  The purpose of the next preceding sentence is to limit the effect of erroneous descriptions or accidental conveyances.

477:55  Assurance Deed Application.  A petitioner shall compile and certify an assurance deed application providing research findings that identify and compile land area and boundary claims, and chain of title evidence validating source of title determinations.  Following requisite duration of notice as provided in RSA 477:56, and the reconciliation of intervening interests, asserted and reasserted claims, conveyance of real estate by assurance deed, executed, acknowledged and filed as directed in RSA 478 may occur.  The register of deeds shall receive, record, and index the assurance deed application at length in the registry of deeds for the county or counties in which the real estate lies as set forth under RSA 477:54.  Without limiting the generality of the foregoing, an assurance deed petitioner shall file an assurance deed application and publicize the following:

I.  The petitioner shall certify and include a copy of the notice in the assurance deed application filing.

II.  Certified memorandums by a licensed land surveyor evidencing boundary research and rightful title ownership prepared by a title examiner.

III.  Certification that title history and research methods certified by survey

comply with the New Hampshire Bar Association Title Standards as amended, relevant law, and administrative rules.

IV.  Certification by written affidavit to be recorded with the assurance deed application that the landowner has no personal knowledge of title defects or irregularities that impair the quiet enjoyment or marketability of the real estate and improvement thereon.  The landowner shall affirm and the petitioner shall confirm that to the best of the petitioner’s knowledge and belief:

(a)  There is no suspicion of or known and undisclosed title liens or defects, or matters created by or agreed to by the landowner that may limit the marketability of the title to include violations of state or municipal law.

(b)  All tenancies in title agree to own a future equitable interest in the real estate owned by a special purpose trust managed by a trustee acting in a fiduciary capacity.

(c)  All persons granted title interests or rights as collateral have been disclosed.

(d)  All persons granted future title interests or rights have been disclosed.

(e)  There is no known and undisclosed environmental contamination.

(f)  The landowner’s affidavit witnessed by the petitioner shall be subject to RSA 478:42.

V.  The petitioner shall identify, qualify, and publish in abstract form research in support of an assurance deed application to include:

(a)  Current and pending matters concerning governmental police powers, eminent domain, taxation, and escheat.

(b)  All pending bankruptcy matters where the landowner is subject to trustee claims.

(c)  Disclosures of all notices of restrictive and nonrestrictive covenants or contracts that encumber the land or improvements thereon.

(d)  All outstanding property liens for obligations payable and certificates and notices affecting the liens, including without limitation, subordinations, refiled notices, and discharges purporting to but ineffectively releasing or discharging said lien on file in the registry of deeds of the county in which the real property subject to the liens is situated.

(e)  Municipal liens, known zoning violations, or other material ordinance or building code violations that adversely affect property marketability.

(f)  Resolution of all identifiable name variations of former title owners consistent with the doctrine of idem sonans.

(g)  Affirmation by the grantor as to the applicability of homestead rights and the existence of any court order, whether divorce or otherwise, encumbering or creating obligation relative to the property subject to the assurance deed application.

(h)  There are no federal and state estate taxes due.

(i)  All corrective instruments, if any, properly reference the error they purport to correct or that the error the corrective instruments purports to correct is apparent from the instrument and such corrective instruments effect a cure.

(j)  Any recorded environmental violations.

(k)  Any pending quiet title action or a lis pendens having been recorded to the registry of deeds of the county in which the real property is situated.

VI.  A title examiner may research title transactions to discover source of title evidence for assurance deed applications under the direction of a petitioner, who shall certify the title examination research methodology and work product to be compliant with the New Hampshire Bar Association Title Standards, relevant laws and applicable administrative rules as amended.  The petitioner shall further ensure:

(a)  Research evidence for an assurance deed application:

(1)  Establishes a certifiable record chain of title;

(2)  Establishes the effective date for source of title;

(3)  Is original research not derived from or an extension of prior research by the examiner or by others;

(4)  Physical evidence extends back in time not less than 85 years.

(b)  Copies of all recorded deeds and plans referencing land and boundary descriptions of the real estate described within the assurance deed application and dating back in time not less than 85 years, shall be assembled and delivered to a licensed land surveyor for evaluation.

(c)  Copies of all most recent recorded deeds and plans referencing land, and boundary descriptions of the real estate abutting the land area described within the assurance deed application shall be assembled and delivered to a licensed land surveyor for evaluation.

(d)  A title examiner shall provide the petitioner a certificate of insurance coverage for errors and omission in an amount not less than $1,000,000 per claim with the petitioner as named insured.

VII.  A title examiner shall maintain a complete file of all assurance deed application research reports and supporting evidence for each assurance deed research assignment in accordance with this section, and shall maintain such files for at least 20 years from the date the assurance deed records.  The minimum record retention required by this section shall include the following:

(a)  Name of the applicant.

(b)  The name of the petitioner.

(c)  Copy of the contract between the petitioner and the title examiner.

(d)  Name of the insurer, and the amount, expiration date, and number of the policy carried with respect to title examination errors and omissions.

(e)  An itemized statement of the title examiners findings of fact.

(f)  An itemized statement of all compensation received by the title examiner, from any source whatsoever, in connection with each assurance deed application reporting.

VIII.  A licensed land surveyor shall certify compliance with administrative rules, and:

(a)  Provide an opinion of real property deed description.

(b)  Prepare an assurance deed survey plan that complies with RSA 478:1-a showing the land area and boundaries associated with the assurance deed and the location of the registered asset identifier.

(c)  Note on a plan that the property boundaries and land areas claimed by the assurance deed are consistent with the boundaries of abutting properties, or identifies areas of potential conflict.

(d)  A note on a plan that the assurance deed survey plan illustrating land area claimed by the assurance deed application certifies the establishment of a registered asset identifier.

(e)  Provide an opinion that an inspection of municipal records and the claimed land area and boundaries show no evidence of encroachment, encumbrance, violation, variation, or adverse circumstances affecting the title that are not disclosed in the public record.

(f)  Provide the petitioner, who shall be the named insured, a certificate of insurance coverage for errors and omission in an amount not less than $1,000,000 per claim.

IX.  An assurance deed shall convey legal ownership to an individual trust managed by a trustee acting in a fiduciary capacity as defined in RSA 564-B, the trust permanently identified by the corresponding registered asset identifier associated with the land area claimed by the assurance deed, that association assigned to the property by a licensed land surveyor.

477:56  Assurance Deed Notice; Knowledge; Giving Notice; Receipt of Notice; Form of Notice.  The petitioner shall give notice of filing of the application for establishing a marketable record title and the intent to convey by assurance deed real estate to a special purpose trust as legal owner.  Publication in fact that an assurance deed application is on file to provide information validating the determination of a qualifying marketable record title and the means to assert counterclaims.

I.  A person has notice in fact of an assurance deed application if the person has actual knowledge of it; the person has received a notice of it; or from all the facts and circumstances known to the person at the time in question that person has reason to know it exists.

(a)  Except as provided in this section, a person has knowledge or learns of a fact or knows or discovers a fact only when the person has actual knowledge of it.

(b)  A person notifies or gives or sends notice to another, whether the other person comes to know of it, by taking steps reasonably required to inform the other in ordinary course, the steps to be taken to notify or to give or send notice as specified in this section must be taken.

(c)  A person receives a notice at the time it:

(1)  Comes to the person's attention; or

(2)  Is delivered at the place of business through which the person conducted the transaction with respect to which the notice is given or at any other place held out by the person as the place for receipt of the communication.

(d)  Notice, or knowledge of a notice, received by a person is effective at the earlier of the time it comes to the attention of the individual conducting the transaction or the time it would have come to the individual's attention had the person maintained reasonable routines for communicating significant information to the individual conducting the transaction and had there been reasonable compliance with the routines.  Reasonable compliance does not require an individual acting for the person to communicate information unless the communication is part of the individual's regular duties or the individual has reason to know of the transaction and that the transaction would be materially affected by the information.

II.  Assurance deed application notice shall contain the following specified information:

(a)  Property address to include a unit number if applicable, the municipal map, lot, and block numbers, lot or unit number on a recorded survey plan if applicable, and the county or counties where the land is situated.

(b)  Petitioner name, address, and telephone contact information.

(c)  The name of the current landowner.

(d)  Date by which public comments, assertion of new claims, or reassertion of abandoned claims must be made.

(e)  Registry of deeds address and the book and page where the assurance deed application is on record.

III.  Notice begins upon assurance deed application recording to the registry of deeds in the county or counties where the property is situated.

IV.  Notice shall provide instructions on how to assert or reassert title claims to rights or interests in the specified property.

V.  Persons with title transactions of record shall be given notice directly or by publication as follows:

(a)  Abutters and parties known to have asserted or reasserted a claim prior to the filing of the assurance deed application shall receive via United States Postal Service certified mail notice acknowledging property claims, to provide instructions on how to correct assurance deed application information related to these claims, or to assert or reassert additional claims.

(b)  Identified dormant claims shall receive, if possible, direct notification by certified mail and by publication of notice in a newspaper advertising the pending assurance deed application.  Such notice shall establish a time frame for reassertion of a dormant claim and instructions on how to correct information or reassert missing claims.

(c)  Claims reasserted during the notice period by refiling the claim in the registry of deeds for the county or counties in which the real estate lies referencing the original book and page shall reinstate a dormant claim.

VI.  For publication of notice in a newspaper:

(a)  Notwithstanding any other provision of law, the petitioner shall cause notice of the pending assurance deed application by publication.  Notice of intent to create an assurance deed shall be published once a week for 3 successive weeks in a newspaper of general circulation within the municipality or county in which the property is situated.  If the property is situated in more than one county, publication shall be in a newspaper of statewide circulation.

(b)  The first publication shall be not more than 2 days after the recording of the assurance deed application calculated by excluding the date of recordation.

(c)  Notice shall reference the registry of deeds book and page where the assurance deed application filings are available to the public as defined in RSA 477:54.

VII.  Statutory form of notice in substance shall follow the form below and shall, when duly executed and delivered, satisfy this section upon publication forever against the lawful claims and demands of all persons:

(Form for assurance deed notice)

Public Notice Is Hereby Given

An assurance deed application bearing registered asset identifier: (RAI)_________, is claiming that the title to the land known locally as_________________Street (Road), in the Town (City) of ___________, within the County of __________, New Hampshire, and further identified in municipal records as Map _________, Lot _________, Block _________, Unit _________, qualifies for statutory protection under an assurance deed.  

The assurance deed application in statutory form is available in the following record location for public review in Book _________, Page _________, at the Registry of Deeds in _________County, New Hampshire.

The address of this Registry of Deeds is: (Address 1) _____________, (City/Town) _________, (State) _________ (Zip) _________

The owner of record and assurance deed applicant is _______________, represented by the application petitioner, Attorney _______________, who is available by United States mail at (Address 1) __________________,(Address 2) _________________ (City/Town) _________, (State) _________ (Zip) _________, or by phone at (Phone) ____________.

Any interested person or their attorney should examine the land area boundaries and record chain of title presented in the application to determine if encroachments, covenants, vested rights, interests, covenants, or claims encumbering this land title are present and accurate.  Any omission or necessity to reassert an abandoned right, interest, covenant or claim associated with this assurance deed application must be postmarked within 30 days of this notice giving the petitioner notice by certified mail.  Notice of omission shall include evidence of claim and any abandoned claim reassertion shall refer to the original record location.  Such evidence shall be produced within 60 days of this notice.

477:57  Marketable Record Title.  Marketable record title means:

I.  A person who has an unbroken record chain of title to real estate for 40 years or more has a marketable record title to the real estate, subject only to the matters stated in RSA 477:58.

II.  A person has an unbroken chain of title if the official public records disclose a conveyance, or other title transaction, of record not less than 40 years before the time marketability is determined, and the conveyance or other title transaction, whether or not it was a nullity, purports to create the interest in or contains language sufficient to transfer the interest to:

(a)  The person claiming the interest; or

(b)  Some other person from whom, by one or more conveyances or other title transactions of record, the purported interest has become vested in the person claiming the interest.

III.  If anything appears of record, in either case described in subparagraph II(b), purporting to divest the claimant of the purported interest, the chain of title is broken.

477:58  Matters to Which Marketable Record Title Is Subject.  The marketable record title is subject to:

I.  All interests and defects that are apparent in the source of title or inherent in the other muniments of which the chain of record title is formed, but a general reference in a muniment to an easement, restriction, encumbrance, or other interest created before the effective date of the source of title is not sufficient to preserve it unless a reference by record location is made in the muniment to a recorded title transaction that created the easement, restriction, encumbrance, or other interest;

II.  All interests preserved by the recording of proper notice of intent to preserve an interest;

III.  All interests arising out of title transactions recorded after the effective date of the source of title, and which have not been previously extinguished; and

IV.  All interests preserved under RSA 477:60.

477:59  Interests Extinguished by Not Encumbering a Marketable Record Title.

I.  In this section, "person dealing with the real estate" includes a purchaser of real estate, the taker of a security interest, a levying or attaching creditor, a real estate contract vendee, or another person seeking to acquire an estate or interest therein or impose a lien thereon.

II.  Subject to RSA 477:58, a marketable record title is held by its owner and is taken by a person dealing with the real estate free and clear of all interests, claims, and charges, the existence of which depends upon an act, transaction, event, or omission that occurred before the effective date of the source of title.  All interests, claims, or charges, however denominated, whether legal or equitable, present or future, whether the interests, claims, or charges are asserted by a person who is or is not under a disability, whether the person is within or without the state, whether the person is an individual or an organization, or is private or governmental, are null and void.

III.  Recording an interest after the effective date of the source of title does not revive an interest previously extinguished.

477:60  Effect Upon Marketable Record Title of Recording Notice of Intent To Preserve An Interest.

I.  A person claiming an interest in real estate may preserve and keep the interest, if any, effective by recording during the 40-year period immediately following the effective date of the source of title of the person who would otherwise obtain marketable record title, a notice of intent to preserve the interest.  Disability or lack of knowledge of any kind on the part of anyone does not suspend the running of the 40-year period.  The notice may be recorded by the claimant or by another person acting on behalf of a claimant who is:

(a)  Under a disability;

(b)  Unable to assert a claim on his or her own behalf; or

(c)  One of a class, but whose identity cannot be established or is uncertain at the time of recording the notice of intent to preserve the interest.

II.  The notice shall:

(a)  State the name of the person claiming to be the owner of the interest to be preserved;

(b)  Contain a reference by record location to a recorded document creating, reserving, or evidencing the interest to be preserved or a judgment confirming the interest;

(c)  Be signed by or on behalf of the person claiming to be the owner of the interest; and

(d)  State whether the person signing claims to be the owner or to be acting on behalf of the owner.

III.  A notice recorded to preserve a utility easement claimed in the real estate of another shall include a site plan incorporating the claim.

477:61  Interests Not Barred by Assurance Deed.  An assurance deed does not bar:

I.  A restriction, the existence of which is clearly observable by physical evidence of its use;

II.  A use or occupancy inconsistent with the marketable record title, to the extent that the use or occupancy would have been revealed by reasonable inspection or inquiry;

III.  Rights of a person in whose name the real estate or an interest therein was carried on the real property tax rolls within 3 years before marketability is to be determined, if the relevant tax rolls are accessible to the public when marketability is to be determined;

IV.  A claim of the United States not subjected by federal law to the recording requirements of this state and which has not terminated under federal law; and

V.  Oil, gas, sulphur, coal, and all other mineral interests, whether similar or dissimilar to those minerals specifically named.

477:62  Effect of Contractual Liability as To Interests Antedating Source of Title.  This subdivision does not relieve a person of contractual liability with respect to an interest antedating the person's source of title to which the person has agreed to be subject by reason of the provision of a deed or contract to which the person is a party, but a person under contractual liability may create a marketable record title in a transferee not otherwise subjected to the interest antedating source of title by this subdivision.

477:63  Limitations of Actions.  This subdivision does not extend the period for bringing an action or for doing any other required act under a statute of limitations.

477:64  Abandonment in Fact.

I.  This subdivision does not preclude a court from determining that an interest has been abandoned in fact, whether before or after a notice of intent to preserve it has been recorded.

II.  Unless a reference in a document is a reference to another document by its record location, a person by reason of the reference is not charged with knowledge of the document or an adverse claim founded on it, and the document is not in the record chain of title by reason of the reference to it.

III.  References that are not to a record location and are too indefinite to charge a person with knowledge of an interest or to bring the document within the record chain of title include:

(a)  "Subject to the terms of a deed dated July 4, 1976, from A to B;"

(b)  "Subject to a mortgage from A to B;"

(c)  "Subject to existing encumbrances;"

(d)  "Subject to easements of record;"

(e) "Subject to mortgages of record;" and

(f)  "Excepting so much of the described premises as I have heretofore conveyed."

IV.  This subdivision does not limit the effect of recording a memorandum of lease or other document the recording of which is permitted by law.

477:65  Effect of Indefinite Reference in Recorded Instrument.

I.  No indefinite reference in a recorded instrument shall subject any person not an immediate party thereto to any interest in real estate, legal or equitable, nor put any such person on inquiry with respect to such interest, nor be a cloud on or otherwise adversely affect the title of any such person acquiring the real estate under such recorded instrument if he is not otherwise subject to it or on notice of it.

II.  No instrument shall be deemed recorded in due course unless so recorded in the registry of deeds for the county or counties in which the real estate affected lies as to be indexed in the grantor index under the name of the owner of record of the real estate affected at the time of the recording.

III.  This subdivision shall not apply to a reference to an instrument in a notice or statement permitted by law to be recorded instead of such instrument, nor to a reference to the secured obligation in a mortgage or other instruments appearing of record to be given as security, nor in any proceeding for enforcement of any warranty of title.

477:66  Curative Measures on Expired Mortgage Instruments.

I.  No power of sale in any mortgage of real estate shall be exercised and no entry shall be made nor possession taken nor proceeding begun for foreclosure of any such mortgage after the expiration of a period which shall be 40 years from the recording of the mortgage in case of mortgages recorded on or after January 1, 1979, and which shall be from the recording of the mortgage until January 1, 2019, in case of mortgages recorded before January 1, 1979, unless in either case an extension of the mortgage, or an acknowledgment or affidavit that the mortgage is

not satisfied, is recorded within the last 10 years of such period, or within three from the effective date of this act, whichever is later.

II.  In case an extension of the mortgage or such an acknowledgment or affidavit is so recorded, the period shall continue until 10 years shall have elapsed during which there is not recorded any further extension of the mortgage or acknowledgment or affidavit that the mortgage is not satisfied.  The period shall not be extended due to a longer duration of the debt or obligation secured being stated in the mortgage or in any extension of the mortgage, or otherwise, or by non-residence or disability of any person interested in the mortgage or the real estate, or by any partial payment, agreement, extension, acknowledgment, affidavit, or other action not meeting the requirements of this section.

III.  No extension of the mortgage, and no acknowledgment that the mortgage is not satisfied, whether contained in a conveyance or in a separate instrument, shall be sufficient to extend the period specified in paragraph II unless it is executed by one or more of the person or persons then appearing of record to own the real estate then subject to the mortgage, and describes the mortgage sufficiently to identify the record of it, and states that the property is subject to the mortgage or that the mortgage is not satisfied.  No affidavit that the mortgage is not satisfied shall be sufficient to extend the period unless it is executed by the holder of the mortgage, describes the mortgage sufficiently to identify the record thereof, names one or more of the person or persons then appearing of record to own the real estate then subject to the mortgage, and states that the mortgage remains unsatisfied, and if the mortgage secures a promissory note or sum of money, the amount believed to remain unpaid.  The holders of mortgages or other encumbrances shall not be considered owners.  The register of deeds upon payment of the fee required by law shall record any such affidavit and any such acknowledgment contained in a separate instrument, and enter upon the margin of the record of the mortgage a note of reference to the record of the affidavit or acknowledgment and index it in the grantor index under the names of the owner or owners named in the affidavit or executing the acknowledgment.

IV.  For the purposes of this section, the term ''mortgage'' includes any deed of trust or other conveyance made for securing performance of a debt or obligation, and no proceeding shall be considered begun until a memorandum has been recorded in the registry of deeds for the county or recording district in which the real estate is situated.  When any mortgage includes parcels in different ownerships at the time of recording of an extension, acknowledgment or affidavit the recording shall be sufficient only for the parcels which the owner or owners executing the extension or acknowledgment or named in the affidavit then appear of record to own.  When the real estate is situated in more than one county or district, recording in any county or district shall be sufficient only for the real estate there situated.  This shall not revive, preserve, or extend any mortgage otherwise ineffective nor affect enforcement of the debt or obligation otherwise than against the real estate mortgaged.

V.  When any owner of land the title to which is not registered, or of any interest in such land, signs an instrument of writing conveying or purporting to convey his or her land or interest, or in any manner affecting or purporting to affect the title thereto, and the instrument, whether or not entitled to record, is recorded, and indexed, in the registry of deeds for the district wherein such land is situated, and a period of 10 years elapses after the instrument is accepted for record, and the instrument or the record thereof because of the defect, irregularity, or omission fails to comply in any respect with any requirement of law relating to seals, corporate or individual, to the validity of acknowledgment, to certificate of acknowledgment, witnesses, attestation, proof of execution, or time of execution, to recitals of consideration, residence, address, or date, to the authority of a person signing for a corporation who purports to be the president or treasurer or a principal officer of the corporation, such instrument and the record thereof shall notwithstanding any of all of such defects, irregularities, and omission, be effective for all purposes to the same extent as though the instrument and the record thereof had originally not been subject to the defect, irregularity, or omission, unless within said period of 10 years a proceeding is commenced on account of the defect, irregularity, or omission, and notice thereof is duly recorded in said registry of deeds and indexed and noted on the margin thereof under the name of the signer of the instrument and, in the event of such proceeding, unless relief is thereby in due course granted.

477:67  Uniformity of Application and Construction.  This subdivision shall be applied and construed to effectuate its general purpose to make uniform the law with respect to assurance deeds.  If any provision of this subdivision or its application to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of this subdivision which can be given effect without the invalid provision or application, and to this end the provisions of this subdivision are severable.

477:68  Statutory Form of Assurance Deed.  A deed in substance following the form below shall, when duly executed and delivered to a special purpose trust, have the force and effect of a deed in fee simple to the grantee, owners in equity, heirs, successors, and assigns, to their own use, with covenants on the part of the grantor, for himself, or herself, heirs, executors, and administrators with the grantee, heirs, successors, and assigns, that at the time of the delivery of such deed the premises were free from all encumbrances made by the grantor, except as stated, and that the grantor will, and the heirs, executors, and administrators shall, warrant and defend the same to the grantee and heirs, successors, and assigns forever against the lawful claims and demands of all persons.

(Form for assurance deed)

____________, of _________County, State of ______________, for consideration paid, grant to ________________, (complete mailing address) _________________, of ___________ Street, _________Town (City) of _________County, State of __________, with assurance covenants, the _________ (boundary description of land or interest therein being conveyed:  Registered Asset Identifier, boundary opinion to include encumbrances, exceptions, reservations, if any) _________, (wife) (husband) of said grantor, release to said grantee all rights of homestead and other interests therein.

(Here add acknowledgment)

2  New Section; Homestead Rights; Assurance Deed.  Amend RSA 480 by inserting after section 9 the following new section:

480:10  Assurance Deed.  A conveyance of legal ownership in real property by assurance deed to a special purpose trust having a fiduciary as administrator, shall preserve for the beneficiary and spouse who occupy and own the equitable interest in the residence on land owned by an irrevocable trust and not result in the loss of homestead rights of any person executing the assurance deed that retains an equitable interest in the special purpose trust, unless the trustee acting as fiduciary receives express release of homestead rights by such person.  Retained homestead rights to any equitable interest in such entity shall be accepted and acknowledged as directed in this chapter.

3  Mortgages; Limitation on Undischarged Mortgages.  Amend RSA 479:28 to read as follows:

479:28  Void After [50] 40 Years.  From and after January 1, [1960] 1979, all undischarged mortgages of real estate which shall have been on record for a period of more than [50] 40 years and which attain such age subsequent to January 1, [1960] 1979, shall be void; provided, however, that a mortgagee or assignee of such a mortgage may continue the same in its full legal effect and priority for an additional period of [50] 10 years from date of such action by recording at any time within such [50-year] 40-year period an affidavit signed by the mortgagor and the mortgagee or assignee stating that the mortgage is not discharged but is still in full force and effect.  All such mortgages which shall have been on record for a period of more than [50] 40 years on or before January 1, [1960] 1979, shall become void on January 1, [1960] 1979, unless prior to that date the mortgagee or the assignee of such a mortgage shall have recorded an affidavit signed by the mortgagor and the mortgagee or assignee stating that the mortgage is not discharged but is still in full force and effect, and upon the recording of such an affidavit such mortgage shall retain its full legal effect and priority for an additional period of [50] 10 years from the date of such recording or subsequent recording.

4  Effective Date.  This act shall take effect January 1, 2020.

Docket

Date Status
Jan. 3, 2019 Introduced 01/03/2019 and referred to Commerce and Consumer Affairs HJ 3 P. 21
March 5, 2019 Public Hearing: 03/05/2019 01:00 pm LOB 302
March 5, 2019 Subcommittee Work Session: 03/05/2019 02:30 pm LOB 302
March 8, 2019 Subcommittee Work Session: 03/08/2019 09:00 am LOB 302-304
March 8, 2019 Executive Session: 03/08/2019 01:30 pm LOB 302-304
Retained in Committee
June 25, 2019 Full Committee Work Session: 06/25/2019 10:00 am LOB 302

Action Dates

Date Body Type
March 5, 2019 House Hearing
March 8, 2019 House Exec Session
March 8, 2019 House Exec Session

Bill Text Revisions

HB601 Revision: 4865 Date: Jan. 15, 2019, 3:03 p.m.