Properties Magazine February 2017 : Page 73

> COMMERCIAL REAL ESTATE expertise. vested rights in any person or in any real property instrument). In the scenario above, the buyer’s objection to a defective title should not result in a failure of condition. The seller can convey marketable title to the buyer, free and clear of the hanging interest even though the deed failed to contain a certificate of acknowledgment. The poorly drafted deed was on the record for more than four years from the date of recording, without challenge to rebut the presumption of validity. If four years had not passed since the deed was recorded, a quiet title action may be brought to clear the interest of the grantor. In addition, the presump-tions can only be rebutted by clear and convincing evidence of fraud, undue influence, forgery, duress, incompetency, or incapacity, and must be rebutted, if at all, within four years of the recording of the defective real estate instrument. No doubt this new tool will assist in clearing many defects in title and will reduce costly litigation. Title insurance companies will suffer far fewer title insur-ance claims. Real estate deals will close more smoothly. However, fine-eyed liti-gators who hold parties to the precise drafting of real estate instruments to get out of poorly crafted contracts have lost a tool in their toolbox. I believe that it will also assist in reducing legal malprac-tice claims when legal documents fail to comply with the basic tenants and for-malities required under the law as it relates to real estate instruments. Just like we have to patrol our property boundaries for squatters, we now have to patrol our real estate titles. This will certainly increase the need to file timely actions to rebut the presumptions laid out in the statute. P This article is meant to provide general informa-tion only and is not a substitute for legal advice. Statutory references have been paraphrased for purposes of simplicity and ease of reading. Readers should seek the advice of their attorney or contact Kathryn Carlisle-Kesling at carlisle@buckleyking. com or 216.685.4761. Kathryn Carlisle-Kesling is a partner with the law firm of Buckley King. She is an Ohio State Bar Association Board Certified Specialist in Residential Real Property Law and possesses a thorough understanding of the intrica-cies of real estate and title matters. > PERSONALIZED COMMUNITY BANK service. It’s all about collaboration, individualized service and fostering economic growth in our community. We’re committed to it. And nearly 80 years of community banking expertise supports it. LET OUR TEA M HELP YOUR S THR I V E . Contact Rig Goss at (216) 239-5904. on time on budget on mark Rethink Your Outside Counsel 216.363.1400 I buckleyking.com SM CLEVELAND I COLUMBUS I CINCINNATI I ATLANTA I PHOENIX I LAS VEGAS www.propertiesmag.com 73

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