The Risk Manager, Winter 2013

The latest in the never-ending effort to enlarge a lawyer’s standard of care is that some plaintiffs’ attorneys are claiming that a title examiner is not entitled to rely upon an affidavit of descent properly indexed in the county court clerk’s office. Rather it is asserted that the title examiner has a duty to go behind the affidavit and ascertain its accuracy.

Avoid this risk by including in the exceptions to your title opinions the following language currently used by one of our experienced insured lawyers:

• No certification is made as to the interest of any person inheriting an interest in property whose name was omitted from any affidavit of descent appearing in the chain of title for this property.

In anticipation of further efforts during this era of real estate foreclosures to create lawyer liability, we suggest you also consider adding these exceptions to your title opinions if you are not already doing so:

• No certification is made or opinion rendered as to the propriety, including jurisdiction of the court or service on the parties, of any court proceeding that resulted in a deed that is in the chain of title for this property.
• It is assumed that all persons who executed deeds or other documents in the chain of title were competent to do so at the time they executed said document.
• No certification is made as to the judgment of any court affecting the chain of title for this property that is not properly recorded in the County Court Clerk’s Office referenced above.
• No certification is made as to any liens, out-conveyances or other documents recorded against or by persons using names other than those contained in the chain of title supplied by the request for title opinion.
• This examination is limited to the properly indexed records of the County Court Clerk’s office at the time this search was conducted