MN Underwriting References

Affidavits

AFFIDAVITS AS TO EVIDENTIARY FACTS

An examining attorney is justified in relying upon affidavits as to evidentiary facts in relation to the title only in the following cases: (a) When authorized by special statute, i.e. affidavits of vacancy, service upon an occupant, military status, etc. (b) To establish prima facie evidence as to the identity, marital status or relation, military status or death or time of death of a party to the record title, or as to the identity of any corporation or other legal entity to the record title under Minn Stat § 507.29, but only when it shows affirmatively a personal knowledge of the facts and that it is made from actual knowledge and not on information and belief. (c) As an estoppel against the person making the affidavit. Amended June 15, 1973

Standard 22

Contracts for Sale/Deed

UNFULFILLED CONTRACT FOR DEED OLD CONTRACTS FOR DEED

An examiner may disregard a recorded contract for deed when 21 years have elapsed since the maturity date of the final payment under the contract or when 21 years have elapsed since the date of the contract if no maturity date is shown. An examiner may disregard a recital of an unrecorded contract for deed when 21 years have elapsed since the latest of the following dates: (1) The date of the contract; (2) The maturity date of the contract; (3) The date of the instrument making reference to the contract for deed if no date of the contract or maturity thereof is recited. Note: See Minn Stat § 508.48 as to registered land. Amended June

Standard 26

Conveyances

STRAY CONVEYANCES —STRANGER JOINING WITH RECORD OWNER

A person joining with the record owner in a conveyance as defined in Minn Stat § 507.01, is not a stranger to the title and notice should be taken of the person’s interest provided that where parties joined with fee owners in a conveyance recorded over 21 years ago and the conveyance does not recite the nature of their interest and they do not again appear in the chain of title, the joinder may be disregarded if there is of record a conveyance by warranty deed executed by the fee owner at the time of the joinder which does not recite the interest of the parties joining in the conveyance. See Minn Stat § 508.48 as to registered land. Joinder by a spouse with the record owner is notice only of the spouse’s homestead, survivorship and marital property interests, and may be disregarded for any other purpose.

Standard #15 Note: See Minn Stat §§ 524.2-402, 524.2-201–.2-215, and 518.54, subd 5.

STRAY CONVEYANCES — STRANGER TO STRANGER

Title to real estate is not unmarketable as a result of a conveyance, as defined in Minn Stat § 507.01, from a stranger to the record title (including a prior owner of record) to another stranger to the record title if 15 years have elapsed from the date of such instrument. If the date of such instrument is less than 15 years prior to the date of examination, inquiry should be made to ascertain the interest claimed. Caveat: This standard may not apply in situations where successive deeds may establish a source of title under the Marketable Title Act. Authority: Miller v Hennen, 438 NW2d 366 (Minn 1989). Standard #16 Note: The type of inquiry required by the standard depends upon the individual circumstances. The standard does not necessarily require quit claim deeds from the strangers. For example, it may be a matter of reasonable business risk to ignore a stray instrument which appears to be the result of a drafting error, absent other evidence of a claim of ownership by the strangers, either on the record or by reason of possession.

DEEDS RECORDED AFTER GRANTOR’S DEATH

Where instruments are filed for record subsequent to known date of maker’s death, the examiner may assume effective delivery prior to death of the maker.

Standard #17 Authority: Schweigel v LA Shakman Co, 78 Minn 142, 80 NW 871 (1899); Kammrath v. Kidd, 89 Minn 380, 95 NW 213 (1903).

WILL ADMITTED BUT NO DECREE OR CONVEYANCE — PASSAGE OF TITLE

Where a title depends upon a devise, the record of a certified copy of the will and of an order of a Minnesota court or registrar’s statement admitting the will to probate is not alone sufficient as a link in the chain of title, even though the time for filing claims against the estate has expired. A recorded certified copy of a decree of distribution or descent made by a Minnesota probate court pursuant to the will, or a personal representative’s deed of distribution to the devisees pursuant to the will with appropriate supporting documentation is necessary to complete the chain of record title; except that in those cases where the will was admitted to probate prior to the year 1900 no copy of a decree of distribution is necessary. Amended June 29, 1984

Standard 23

Deeds

MARITAL STATUS OF GRANTOR — NO PRIOR MARRIAGE SHOWN

Where the record fails to show that a grantor was ever married and the conveyance out refers to him or her as single, unmarried, widower or widow, title should be passed without further question. Authority: Judd v Skidmore, 33 Minn 140, 22 NW 183 (1885).

MARITAL STATUS OF GRANTOR—PRIOR MARRIAGE OF PERSON DESIGNATED “SINGLE” OR “UNMARRIED”

Where the record shows that a grantor was married but the conveyance out has been of record less than 15 years and recites that the grantor is “single” or “unmarried,” proof of death or divorce or dissolution of marriage should be recorded. An affidavit, or affidavit and death certificate, is sufficient proof of death, but a certified copy of a decree of divorce or dissolution of marriage or a certificate of dissolution or a summary real estate disposition judgment should be recorded to prove divorce or dissolution of marriage.

Title Standard #11 Authority: Minn Stat § 507.29; Minn Stat §§ 518.06, 518.191; Minn Stat § 519.101.

MARITAL STATUS OF GRANTOR — DEED BY “DIVORCED” GRANTOR

Where the record affirmatively shows that a grantor was divorced and the conveyance by such grantor has been of record less than 15 years, a certified copy of the decree of divorce or dissolution of marriage or a summary real estate disposition judgment shall be filed. Authority: Minn Stat § 519.101. Title Standard #12 Cross reference: Title Standard No 7

Dissolution of Marriage

Severence of Joint Tenancy per Dissolution Decree

A decree of dissolution of a marriage in which there is a final determination of the rights of the parties in property held in joint tenancy, severs the joint tenancy between the parties unless the decree declares that the parties shall continue to hold the property as joint tenants. Authority: Minn Stat § 500.19, subd 5; Snyder v Snyder, 298 Minn 43, 212 NW2d 869 (1973). Amended June 16, 1989; June 29, 1990; June 14, 1991

Standard 21

MARITAL STATUS OF GRANTOR—PRIOR MARRIAGE OF PERSON DESIGNATED “SINGLE” OR “UNMARRIED”

Where the record shows that a grantor was married but the conveyance out has been of record less than 15 years and recites that the grantor is “single” or “unmarried,” proof of death or divorce or dissolution of marriage should be recorded. An affidavit, or affidavit and death certificate, is sufficient proof of death, but a certified copy of a decree of divorce or dissolution of marriage or a certificate of dissolution or a summary real estate disposition judgment should be recorded to prove divorce or dissolution of marriage.

Entities

FILING EVIDENCE OF LEGAL EXISTENCE AND CONTINUANCE OF ENTITIES

Recording It is not necessary to record an entity’s organizational documents in the office of the county recorder or registrar of titles to show legal existence, even if the filing of such entity’s organizational documents in a public office is required in order to confer legal existence on such entity.

Compliance with the applicable recording requirements set forth in Minn Stat Ch 315 is necessary to show legal corporate existence of religious corporations organized under that chapter.

Authority: Minn Stat §§ 302A.151, 302A.153, 302A.155; Minn Stat § 358.50; Minn Stat Ch 315; Mark Dunnell, ed, 9 Dunnell Minnesota Digest: An Encyclopedia of Minnesota Law § 2.07 (LexisNexis 5th ed 2003). 33.2 Continued Legal Existence A title shall not be unmarketable because the continued legal existence of an entity in the chain of title does not appear of record. Caveat: This standard reflects existing practice and does not address issues raised by Kratky v Andrews, 244 Minn 386, 28 NW2d 624 (1947) or Stone v Jetmar Properties, LLC, 733 NW2d 480 (Minn App 2007). Amended June 24, 1949; June 14, 1991; November 15, 2008

Standard 33

Forfeiture

EXPIRED FORFEITURE PROVISIONS — DISCHARGE BY TIME LIMIT

A title examiner may disregard forfeiture clauses which are a part of restrictions, two years after the termination of such restrictions if no lis pendens in an action to declare a forfeiture appears of record. In the case of vacant land, the forfeiture clauses may be disregarded immediately after the expiration of the restrictions.

Judgments and Liens

548.09 LIEN OF JUDGMENT. Subdivision 1.Entry and docketing; survival of judgment. Except as provided in section 548.091, every judgment requiring the payment of money shall be entered by the court administrator when ordered by the court and will be docketed by the court administrator upon the filing of an affidavit as provided in subdivision 2. Upon a transcript of the docket being filed with the court administrator in any other county, the court administrator shall also docket it. From the time of docketing the judgment is a lien, in the amount unpaid, upon all real property in the county then or thereafter owned by the judgment debtor, but it is not a lien upon registered land unless it is also recorded pursuant to sections 508.63 and 508A.63. The judgment survives, and the lien continues, for ten years after its entry. Child support judgments may be renewed pursuant to section 548.091. §Subd. 2.Judgment creditor's affidavit. No judgment, except for taxes, shall be docketed until the judgment creditor, or the creditor's agent or attorney, has filed with the court administrator an affidavit, stating the full name, occupation, place of residence, and post office address of the judgment debtor, to the best of affiant's information and belief. If the residence is within an incorporated place having more than 5,000 inhabitants, the street number of both the judgment debtor's place of residence and place of business, if the debtor has one, shall be stated. Subd. 3.Violations by court administrator. If the court administrator violates this provision, neither the judgment nor the docketing is invalid, but the court administrator shall be liable to a person damaged by the violation in the sum of $5.

Satisfaction

570.11 SATISFACTION AND DISCHARGE; REAL ESTATE. An attachment of real estate may be released by recording with the county recorder or the registrar of titles for registered property:

(1) a certified copy of an order of the court vacating the attachment, or of a final judgment in the respondent's favor, or a satisfaction of judgment in the claimant's favor, rendered in the civil action;

(2) a certificate of satisfaction or discharge of the attachment, executed and acknowledged by the claimant or the claimant's attorney, as required for the satisfaction of a mortgage; or

(3) a deed of release of the attached premises, or of any part or interest therein, in which case the parts or interests not described in the deed shall remain subject to the attachment lien.

Time

A judgment lien in Minnesota will remain attached to the debtor's property (even if the property changes hands) for ten years.

After Death

548.07 JUDGMENT AFTER DEATH OF PARTY. Judgment may be entered after the death of a party upon a verdict, or decision upon an issue of fact, rendered in the party's lifetime. Such judgment shall not be a lien on real property of the decedent, but shall be payable, in the course of administration of the decedent's estate, as if allowed by the district court against the estate.

UNSATISFIED MORTGAGES — OLD MORTGAGES AND ASSIGNMENTS OF RENT

United States Mortgage

Except in the circumstances identified in 25.3 below, an examiner may not disregard an unsatisfied mortgage held of record by the United States or an agency or instrumentality thereof.

Private Party Mortgage

An examiner may disregard an unsatisfied mortgage of record granted to a private party when 15 years have elapsed since the maturity date of the debt as stated in the mortgage or determined from information contained in the mortgage or in any recorded extension of the mortgage, unless the United States or an agency or instrumentality thereof became the owner of the mortgage. If the maturity date of the debt cannot be determined from such a mortgage owned by a private party, or any recorded extension thereof, an examiner may disregard an unsatisfied mortgage of record when 15 years have elapsed since the date of the mortgage.

Federal Statute of Limitation

Where a specific federal statute imposes a period of limitation on enforcement of a mortgage held of record by the United States or an agency or instrumentality thereof, an examiner may disregard such unsatisfied mortgage after the applicable period specified in such statute. 25.4 Unrecorded Private Party Mortgage An examiner may disregard a recital of the existence of an unrecorded mortgage granted to a private party once five years have elapsed since the date of the instrument containing the recital. If a notice of lis pendens concerning an action to foreclose an unrecorded mortgage is recorded during the five year period, then the recital is actual or constructive notice of the unrecorded mortgage.

Assignment of Rents

An examiner may disregard an assignment of rents, whether in a mortgage or in a separate instrument, and which assignment is given pursuant to and in accordance with the requirements set forth in Minn Stat § 559.17, subd 2, when the mortgage may be disregarded as set forth in 25.2 and 25.3 above, or if the related mortgage has been satisfied or released. Authority: Minn Stat § 507.332; Minn Stat § 541.03; Minn Stat § 559.17; 12 USC § 1787(b)(14); 12 USC § 1821(d)(14); 28 USC § 2415(a); Polish Union of the United States of North America v Kruszewski, 171 Minn 252, 213 NW 913 (1927); Smith v FDIC, 61 F3d 1552 (11th Cir 1995); Farmers Home Administration v Muirhead, 42 F3d 964 (5th Cir 1995); Magnolia Federal Bank for Savings v United States, 42 F3d 968 (5th Cir 1995); United States v. Peoples Household Furnishings, Inc, 75 F3d 252 (7th Cir 1996); DeSalle v Gibraltar Title Agency LLC, 621 NW2d 31 (Minn App 2000). Note: See Minn Stat §§ 508.48 and 508A.48 as to registered land. Private party means any person or entity other than the United States or an agency or instrumentality thereof. Foreclosure of a mortgage held by the United States or an agency or instrumentality thereof does not constitute an action for money damages under 28 USC § 2415(a) so the six year limitation period of that statute does not apply. Specific statutes which contain a limitation of actions or adopt the Minnesota limitation of actions include the following: 12 USC § 1787(b)(14) for mortgages held by the National Credit Union Administration Board as conservator or liquidating agent and 12 USC § 1821(d)(14) for mortgages held by the Federal Deposit Insurance Corporation as conservator or receiver. There is, however, no limitation of action on mortgages granted, for example, to the SBA. A contract of insurance or guaranty whereby the United States or an agency or instrumentality thereof (collectively, the “United States”) indemnifies a private party against loss on a mortgage loan made by such private party is not a mortgage granted to the United States nor does it result in the acquisition of such loan by the United States until, pursuant to such contract, the title to the mortgage is assigned by the private party to the United States. Amended June 20, 1958; June 14, 1991; June 25, 1993; June 23, 1995; June 21, 1996; June 22, 2001; June 23, 2006; November 13, 2010

Standard 25

Leases

LEASES—NOTICE—OLD LEASES

In the absence of a notice of renewal from possession, record or otherwise, an examiner may omit from his opinion reference to a recorded lease when the term expressed in said lease has expired.

Standard 28

Mortgages & Deeds of Trust

UNSATISFIED MORTGAGES — OLD MORTGAGES AND ASSIGNMENTS OF RENT

United States Mortgage

Except in the circumstances identified in 25.3 below, an examiner may not disregard an unsatisfied mortgage held of record by the United States or an agency or instrumentality thereof.

Private Party Mortgage

An examiner may disregard an unsatisfied mortgage of record granted to a private party when 15 years have elapsed since the maturity date of the debt as stated in the mortgage or determined from information contained in the mortgage or in any recorded extension of the mortgage, unless the United States or an agency or instrumentality thereof became the owner of the mortgage. If the maturity date of the debt cannot be determined from such a mortgage owned by a private party, or any recorded extension thereof, an examiner may disregard an unsatisfied mortgage of record when 15 years have elapsed since the date of the mortgage.

Federal Statute of Limitation

Where a specific federal statute imposes a period of limitation on enforcement of a mortgage held of record by the United States or an agency or instrumentality thereof, an examiner may disregard such unsatisfied mortgage after the applicable period specified in such statute. 25.4 Unrecorded Private Party Mortgage An examiner may disregard a recital of the existence of an unrecorded mortgage granted to a private party once five years have elapsed since the date of the instrument containing the recital. If a notice of lis pendens concerning an action to foreclose an unrecorded mortgage is recorded during the five year period, then the recital is actual or constructive notice of the unrecorded mortgage.

Assignment of Rents

An examiner may disregard an assignment of rents, whether in a mortgage or in a separate instrument, and which assignment is given pursuant to and in accordance with the requirements set forth in Minn Stat § 559.17, subd 2, when the mortgage may be disregarded as set forth in 25.2 and 25.3 above, or if the related mortgage has been satisfied or released. Authority: Minn Stat § 507.332; Minn Stat § 541.03; Minn Stat § 559.17; 12 USC § 1787(b)(14); 12 USC § 1821(d)(14); 28 USC § 2415(a); Polish Union of the United States of North America v Kruszewski, 171 Minn 252, 213 NW 913 (1927); Smith v FDIC, 61 F3d 1552 (11th Cir 1995); Farmers Home Administration v Muirhead, 42 F3d 964 (5th Cir 1995); Magnolia Federal Bank for Savings v United States, 42 F3d 968 (5th Cir 1995); United States v. Peoples Household Furnishings, Inc, 75 F3d 252 (7th Cir 1996); DeSalle v Gibraltar Title Agency LLC, 621 NW2d 31 (Minn App 2000). Note: See Minn Stat §§ 508.48 and 508A.48 as to registered land. Private party means any person or entity other than the United States or an agency or instrumentality thereof. Foreclosure of a mortgage held by the United States or an agency or instrumentality thereof does not constitute an action for money damages under 28 USC § 2415(a) so the six year limitation period of that statute does not apply. Specific statutes which contain a limitation of actions or adopt the Minnesota limitation of actions include the following: 12 USC § 1787(b)(14) for mortgages held by the National Credit Union Administration Board as conservator or liquidating agent and 12 USC § 1821(d)(14) for mortgages held by the Federal Deposit Insurance Corporation as conservator or receiver. There is, however, no limitation of action on mortgages granted, for example, to the SBA. A contract of insurance or guaranty whereby the United States or an agency or instrumentality thereof (collectively, the “United States”) indemnifies a private party against loss on a mortgage loan made by such private party is not a mortgage granted to the United States nor does it result in the acquisition of such loan by the United States until, pursuant to such contract, the title to the mortgage is assigned by the private party to the United States. Amended June 20, 1958; June 14, 1991; June 25, 1993; June 23, 1995; June 21, 1996; June 22, 2001; June 23, 2006; November 13, 2010

Standard 25

Notary & Acknowledgments

REMOTE ONLINE NOTARIZATION AUTHORIZATION Effective January 1, 2019, the Minnesota Legislature enacted remote online notarization pursuant to Minnesota Statutes 358 and 359, allowing a notary public who is physically located in this state to perform a remote online notarial act as defined in Minnesota Statutes 358.645.

Remote Online Notarization Authorization Registration To apply for Remote Online Notarization Authorization, applicants must be currently registered as an active Minnesota Notary, must have filed the notary public commission in the county where they live, must be in possession of proof of filing (receipt or copy) and be able to produce that proof upon request. If you have not filed with your resident county, you will need to comply with Minnesota Statutes section 359.061, Subd. 1 and 357.021, Subd. 2 (12) before applying for remote online notarization authorization.

A remote online notary public must be physically located in this state to perform a remote online notarial act pursuant to Minnesota Statutes 358.645, Subd. 3 (a).

Before a notary performs a remote online notarization, the notary public must register with the Secretary of State according to Minnesota Statutes 359.01, Subd. 5 and must certify that the notary intends to use communication technology that conforms to Minnesota Statutes 358.645, Subd. 2.

Probate & Estates

WILL ADMITTED BUT NO DECREE OR CONVEYANCE — PASSAGE OF TITLE

Where a title depends upon a devise, the record of a certified copy of the will and of an order of a Minnesota court or registrar’s statement admitting the will to probate is not alone sufficient as a link in the chain of title, even though the time for filing claims against the estate has expired. A recorded certified copy of a decree of distribution or descent made by a Minnesota probate court pursuant to the will, or a personal representative’s deed of distribution to the devisees pursuant to the will with appropriate supporting documentation is necessary to complete the chain of record title; except that in those cases where the will was admitted to probate prior to the year 1900 no copy of a decree of distribution is necessary. Amended June 29, 1984

Standard 23

Restrictions And Reverters

RE-ENTRY AND REVERTER — WHO MAY RELEASE

A release shall be required of the possibilities of reverter and of rights of re-entry for breach of a condition subsequent created prior to April 26, 1937, duly executed by the party who reserved the same or by his heirs; since that date by the party who reserved the same or his assigns, or by his heirs if he died intestate, or if he died testate, by the party to whom the same were devised, or, in the absence of a specific devise, by his residuary legatee. A surviving joint tenant can release a possibility of reverter after a determinable fee, a right of entry for breach of condition subsequent, a reversion and a remainder. Authority: Minn Stat § 500.l6; Consolidated School District No 102 of Washington County v Walter, 243 Minn 159, 66 NW2d 881 (1954). Note: This standard relates only to the effect of Minn Stat § 500.l6. Possibilities of reverter and rights of re-entry for breach of conditions subsequent may be barred by other laws including Minn Stat §§ 541.023 and 500.20. See Title Standard Nos 61 and 91A.

Standard #18

Spousal Interests

Joinder Requirements

507.02 CONVEYANCES BY SPOUSES; POWERS OF ATTORNEY. If the owner is married, no conveyance of the homestead, except a mortgage for purchase money under section 507.03, a conveyance between spouses pursuant to section 500.19, subdivision 4, or a severance of a joint tenancy pursuant to section 500.19, subdivision 5, shall be valid without the signatures of both spouses. A spouse's signature may be made by the spouse's duly appointed attorney-in-fact. Spouses who are married to each other may convey the real estate of either by their joint deed. A spouse, by separate deed, may convey any real estate owned by that spouse, except the homestead, subject to the rights of the other spouse therein; and either spouse may, by separate conveyance, relinquish all rights in the real estate so conveyed by the other spouse. Subject to the foregoing provisions, either spouse may separately appoint an attorney-in-fact to sell or convey any real estate owned by that spouse, or join in any conveyance made by or for the other spouse. Use of a power of attorney is subject to section 518.58, subdivision 1a. A minor spouse has legal capacity to join in a conveyance of real estate owned by the other spouse, so long as the minor spouse is not incapacitated because of some reason other than that spouse's minor age.

Non-Joinder of Spouse

After a conveyance has been of record for 15 years, failure of a spouse to join therein shall not be an objection, unless an action in regard thereto is commenced and notice of the same is filed during the 15 year period. Authority: Minn Stat § 519.101

Tenancies

Joint Tenancy

CREATION OF A JOINT TENANCY

In the case of a form deed made to two or more natural persons, a statement that they are joint tenants is sufficient to create a joint tenancy even though inconsistent with words such as “their heirs and assigns” or similar phrases. Authority: Minn Stat § 500.19; Case v Owen, 139 Ind 22, 38 NE 395 (1894); Murray v Kator, 221 Mich 101, 190 NW 667 (1922). Amended June 20, 1958; June 22, 1979

Standard #20

SEVERANCE OF A JOINT TENANCY

Liens

A lien against one joint tenant does not sever the joint tenancy. Authority: Application of Gau, 230 Minn 235, 41 NW2d 444 (1950); Romanchuk v Plotkin, 215 Minn 156, 9 NW2d 421, 425 (1943); Musa v Segelke & Kohlhaus Co, 224 Wis 432, 272 NW 657, 111 ALR 168 (1937); Annotation, Judgment Lien or Levy of Execution on One Joint Tenant’s Share or Interest as Severing Joint Tenancy, 51 ALR 4th 906 (1987); Annotation, Lien of Judgment, or Levy of Execution, Upon Share or Interest of One Joint Tenant as Severance of the Joint Tenancy, 161 ALR 1139 (1946).

Standard 21

Dissolution Decree

A decree of dissolution of a marriage in which there is a final determination of the rights of the parties in property held in joint tenancy, severs the joint tenancy between the parties unless the decree declares that the parties shall continue to hold the property as joint tenants. Authority: Minn Stat § 500.19, subd 5; Snyder v Snyder, 298 Minn 43, 212 NW2d 869 (1973). Amended June 16, 1989; June 29, 1990; June 14, 1991

Standard 21