I recently received an e-mail from an abstractor asking her state's land title association to help get new legislation enacted to protect title examiners from the liability of undocumented corrections in the index. I think it is a great idea.

Excerpt from the e-mail:
 

I am writing as a member... in hopes that you can get some legislation enacted that will help all those who examine real estate title in the state...

I think it would be helpful if a date was required to be inserted whenever any indices are changed within any county office, such as the Recorder or Clerk of Courts.

I perform title searches in several counties... One county in particular is very careful with their indexing. In the few times that I've found a mistake... the Recorder is careful to put a date the information was changed into the index for future reference. The Clerk of Court... follows the same procedure.

I also go to a few counties where errors are frequently made, but correction notations are not. According to one examiner I spoke with, errors are often made [in another county] because of the sheer volume of documents taken in. She said that she used to inform the Recorder's Office of errors she found within the index. Eventually she said she stopped that practice because she knew that there would be no way of tracking the change date down. She writes the wrong information down for her own records, but that is all she does.

I think others have the same mind set. Normally, title searchers like to be helpful. But if their helpfulness causes anxiety or a title problem for someone else, then that is another matter. Unless change dates are inserted into the record, a searcher has no way of proving that he or she missed the entry because it was spelled wrong or otherwise indexed incorrectly.

Please forward this letter onto the correct person within [your organization] if you agree with me that this new procedure should be followed. I've mentioned this procedure to the Recorders in several counties, but it is not often followed on a regular basis, if at all.

For certain, abstractors shoulder a substantial amount of liability if they do not show an encumbrance on a title search because it was not properly index and later the index is corrected without any notation. Perhaps legislation would be appropriate to require the recorders to enter a notation of the date, and the specific changes, when corrections are made.

I have been told by others that if you talk to the person in charge of IT that they can check the database and let you know if any changes have been made since a certain date. However, that would require you to know that a change was made to a particular entry.

This type of legislation would make the changes public so that if an error was later discovered it would be readily apparent that if it was missed on a prior search it was not the fault of the abstractor. Abstractors have enough liability without more being fabricated from unknown corrections to the index.

This is another terrific reason to bring back the books. When a correction was made to a handwritten book index it was nearly impossible to conceal. If we are going to change our nations real estate indexes to rely on computer databases, the least we can do is preserve the records as they would have been in the trusty books - complete with notations of corrections.

We will have to see if this stirs any interest from the land title associations. Perhaps this is something we should all get involved with. I would suggest that everyone contact their land title association with similar suggestions. Maybe it is even something that NALTEA can work on as the representative of the abstracting community.

Robert A. Franco
SOURCE OF TITLE
rfranco@sourceoftitle.com