If Deed Is Lost, Try to Find Land Records

By Benny L. Kass
Saturday, January 5, 2008

Q: There is no signed deed on my mother's house, where she has lived for more than 47 years. We hired a lawyer, and he hired a private detective to try to learn the facts. My parents bought the house back in the 1960s. We have had no luck resolving this matter. We have all of the papers from when they bought the house, as well as the documents proving that she paid off her mortgage. However, we cannot find the deed. How can a signed deed fall through the cracks? -- Jeffrey

A: DEAR JEFFREY: Your situation is unusual but not uncommon. Before computers, legal documents were often misfiled or lost. Now, many recorders of deeds have computerized all the legal documents, making retrieval simple -- even from your home computer.

Many people believe that when they sell their house, they have to produce the original deed. That is untrue. As long as the land records show that your mother owns the property, that is all you need.

When a person buys a house, the title to that property is searched. The lender will insist on getting title insurance coverage. And the settlement lawyer or escrow company that conducts the settlement will have to assure the lender that title is good and that there are no objections to title. (We lawyers call these problems clouds.)

Even if you pay cash, you want to be assured that you are getting good title and will want to purchase title insurance. The title company will not issue such a policy unless it is satisfied that good and clear title is in the seller's name.

If you really want to track down a copy of the original deed, the first thing you should do is obtain a comprehensive title report and go back as far as possible. You should hire a professional title examiner; don't do this yourself.

However, if the title report raises problems, there are other avenues.

You said that the house is free and clear and that you have documents showing that your mother paid off her mortgage. Try to get a copy of that old mortgage (called a deed of trust in some states). I cannot believe that any legitimate lender would have made a loan to your parents unless they were satisfied that your parents owned the house.

If all else fails, your mother may have to go to court. She would file what is known as an action to quiet title. Your lawyer will be able to guide you.

If someone else is claiming title to the property, she can add a count to the lawsuit claiming adverse possession. In most states, if a person "openly, notoriously and hostilely" uses someone else's property for a period of time prescribed by state law, a judge will issue an order directing that title is now vested in the plaintiff. For example, in Maryland, the adverse possession time is 20 years, while in the District of Columbia it is 15 years.

But the bottom line is that your mother does not need a copy of the original deed to sell her house.

I bought a condo at a foreclosure auction, and there were many contract pages. On one page, it says that I had received the condo association legal documents. In fact, I never did. After the auction and when I finally read the contract, I asked the title company to give me those legal documents.

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