H. B. 2562

(By Delegates Staton, Rowe, Trump and Beane)

(Introduced February 20, 1995; referred to the Committee on the


A BILL to amend chapter thirty-six of the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto a new article, designated article eleven, relating to the Uniform Marketable Title Act.

Be it enacted by the Legislature of West Virginia:
That chapter thirty-six of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended by adding thereto a new article, designated article eleven, to read as follows:
§36-11-1. Definitions.
In this article, unless the context otherwise requires:
(1) "Conveyance" means a transfer of real estate other than by will or operation of law.
(2) "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.
(3) "Effective date of root of title" means the date on which the root of title is recorded.
(4) "Law" includes statutes, case law, administrative actions, and legislative acts of local governments.
(5) "Marketable record title" means a title of record, complying with the provisions of section three of this article, that operates to extinguish interests and claims existing before the effective date of the root of title, as provided in section five of this article.
(6) "Person" means an individual, corporation, business trust, estate, trust, partnership, association, joint venture, government, governmental subdivision or agency, or other legal or commercial entity.
(7) "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.
(8) "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, whether or not under 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.
(9) "Record chain of title" means the series of recorded documents creating or evidencing rights of the successive holders of title to real estate.
(10) "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 the same recording office in this State where the document containing the reference to the location is found.
(11) "Recording office" means the office of the clerk of the county commission.
(12) "Records" includes probate and other official records available in the recording office.
(13) "Restriction" means a covenant, condition, easement, or other limitation created by agreement, grant, or implication affecting the use or enjoyment of real estate, but does not include a security interest or lien.
(14) "Root 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 thirty years before the time marketability is being determined.
(15) "Signed" includes the use of a symbol executed or adopted by a party with present intention to authenticate a writing.
(16) "Title" means the right to an interest in real estate, including the interest of an owner, lessee, possessor, lienor, holder of a security interest, and beneficiary of a restriction including an owner of an easement.
(17) "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, special commissioner's, or county clerk's deed, by decree of a court, by warranty deed, by quitclaim deed, and by a security interest.
(18) "Utility easement" means an easement (i) of way for a railroad, subway, street railway, or trolley bus line; (ii) for the transmission line for the transmission of electricity, electronic communications, water, oil, gas, or other goods; (iii) for sewerage or drainage; or (iv) for similar utility uses.
(19) "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.
§36-11-2. Notice; knowledge; giving notice; receipt of notice.
(a) A person has notice of a fact if:
(1) the person has actual knowledge of it;
(2) the person has received a notice of it; or
(3) from all the facts and circumstances known to the person at the time in question that person has reason to know it exists.
(b) Except as provided in subsection (e)of 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.
(c) A person notifies or gives or sends notice to another, whether or not the other person actually comes to know of it, by taking steps reasonably required to inform the other in ordinary course, but if this article specifies particular steps to be taken to notify or to give or send notice, those steps must be taken.
(d) 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.
(e) Notice, or knowledge of a notice, received by a person is effective for a particular transaction 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.
§36-11-3. Marketable record title.
(a) A person who has an unbroken record chain of title to real estate for thirty years or more has a marketable record title to the real estate, subject only to the matters stated in section four of this article.
(b) 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 thirty 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:
(1) the person claiming the interest; or
(2) 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.
(c) If anything appears of record, in either case described in subsection (b) of this section, purporting to divest the claimant of the purported interest, the chain of title is broken.
§36-11-4. Matters to which marketable record title is subject. The marketable record title is subject to:
(1) all interests and defects that are apparent in the root 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 root 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;
(2) all interests preserved by the recording of proper notice of intent to preserve an interest;
(3) all interests arising out of title transactions recorded after the effective date of the root of title, and which have not been previously extinguished; and
(4) all interests preserved under the provisions of section seven of this article.
§36-11-5. Interests extinguished by marketable record title.
(a) 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.
(b) Subject to the provisions of section four of this article, 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 root 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.
(c) Recording an interest after the effective date of the root of title does not revive an interest previously extinguished.
§36-11-6. Effect upon marketable record title of recording notice of intent to preserve an interest.

(a) A person claiming an interest in real estate may preserve and keep the interest, if any, effective by recording during the thirty-year period immediately following the effective date of the root 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 30-year period. The notice may be recorded by the claimant or by another person acting on behalf of a claimant who is:
(1) under a disability;
(2) unable to assert a claim on his or her own behalf; or
(3) 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.
(b) The notice must:
(1) state the name of the person claiming to be the owner of the interest to be preserved;
(2) 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;
(3) be signed by or on behalf of the person claiming to be the owner of the interest; and
(4) state whether the person signing claims to be the owner or to be acting on behalf of the owner.
(c) A notice recorded to preserve a utility easement claimed in the real estate of another may include a map incorporating the claim.
§36-11-7. Interests not barred by article.
This article does not bar:
(1) a restriction the existence of which is clearly observable by physical evidence of its use;
(2) 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; and
(3) rights of a person in whose name the real estate or an interest therein was carried on the real property tax rolls within three years before marketability is to be determined, if the relevant tax rolls are accessible to the public when marketability is to be determined;
§36-11-8. Effect of contractual liability as to interests antedating root of title.

This article does not relieve a person of contractual liability with respect to an interest antedating the person's root 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 root of title by this article.
§36-11-9. Limitations of actions.
This article does not extend the period for bringing an action or for doing any other required act under a statute of limitations.
§36-11-10. Abandonment in fact.
This article 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.
§36-11-11. Effect of indefinite reference in recorded instrument.

(a) 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.
(b) 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:
(1) "subject to the terms of a deed dated July 4, 1976, from A to B;"
(2) "subject to a mortgage from A to B;"
(3) "subject to existing encumbrances;"
(4) "subject to easements of record;"
(5) "subject to mortgages of record;" and
(6) "excepting so much of the described premises as I have heretofore conveyed."
(c) This section does not prevent an indefinite reference from constituting a waiver or exception or from being taken into account in determining the existence of:
(1) a contractual obligation or condition between the immediate parties to the document in which the reference occurs; or
(2) a negation of a warranty of title.
(d) This section does not limit the effect of recording a memorandum of lease or other document the recording of which is permitted by law.
§36-11-12. Uniformity of application and construction.
This article shall be applied and construed to effectuate its general purpose to make uniform the law with respect to the subject of this article among states enacting it.
§36-11-13. Short title.
This article may be cited as the Uniform Marketable Title Act.
§36-11-14. Time of taking effect; provisions for transition.
(a) Except as otherwise provided in this section, the effective date of this article is the first day of July, one thousand nine hundred ninety-five.
(b) If a period of limitation specified in this article would result in prohibiting commencement of a judicial proceeding before the effective date of this article or within two years after its effective date, the period during which the proceeding may be brought is extended until two years have expired after the effective date, but only if the period would have continued to run under the former law until after the effective date. In all other cases the period of limitation is that specified in this article.
(c) A person who claims an interest that would be extinguished under this article may preserve the interest by recording a notice of intent to preserve the interest within two years after the effective date of this article. The notice has the effect provided in by section six of this article.