Title Tips - April 2015
TITLE TIPS BY JOE VITULLO - APRIL 2015
LAND EVIDENCE RECORDS is the official description of the thirty-nine municipal collections which comprise evidence of land ownership in Rhode Island. They are aptly named, in that title examination entails the reliance on certain evidentiary presumptions when examining deeds and other documents. Title examiners are entitled to rely on various common presumptions when searching the land evidence records. These presumptions are accorded a special exception from the hearsay rule and are generally admissible under the rules of evidence to prove the ownership of land.
An evidentiary presumption is an inference which can be drawn from the existence of certain common facts. They are the starting point of all evidence and are rooted in common sense and necessity. These are rebuttable presumptions, and can disappear when facts develop making the non-existence of the presumed fact equally as probable as its existence. For example, examiners are entitled to the presumption of identity between the grantee in the last deed in a chain of title and the grantor in the next subsequent deed on record, if the names are the same. Even using a middle name or initial in one instrument and not in another, ordinarily does not create a question of identity (R.I. Title Standard 4.2). Although, the addition of a suffix such as "Jr." or "II" to the name of a subsequent grantor rebuts the presumption (R.I. Title Standard 4.5) however, even in relying on the presumption of identity, the actual hidden facts can prove the opposite. In an actual case, Joe Brown and his wife, Mary Brown, took title as tenants in common. Mary Brown died and Joe married another woman named Mary. They were both the grantors on the next deed, but half the title was still in the deceased wife's heirs. Likewise, in a similar case, where a lawyer found title in a corporation and the Secretary of State's office confirmed that the corporation was in good standing, they neglected to state that the corporation had been revoked for several years and that another corporation was allowed to be formed with the same name. This resulted in a complete failure of title.
Nevertheless, deeds are entitled to a number of other presumptions as well. There's a presumption that the grantors have capacity (sound mind), that the signatures on the deed are genuine, and that the deed was delivered by the grantor to the grantee. Title passes only upon deliver, and every deed is required to be delivered (R.I.G.L. 34-11-4). While an unrecorded, delivered deed conveys title, a recorded, undelivered deed does not. R.I.G.L. 34-11-35 creates a "conclusive presumption" that a deed has been delivered if it has been on record for six years or more. This is actually not an evidentiary presumption, but a rule of substantive law created by statute. Even before six years, there is a rebuttable presumption that a recorded deed has been delivered from the grantor to the grantee. If however, the deed is recorded after the death of the grantor, the inference is not justified and the presumption is rebutted. In that situation, it is just as likely that the deed was not delivered before the grantor's death as it was that the deed was, in fact, delivered. Ironically, deeds have dates of execution, acknowledgment and recording, but show no date of delivery.
In addition to recorded documents giving rise to evidentiary presumptions, it is also possible to use these public records as evidence of ownership in judicial proceedings. Proof of ownership is possible from the public records alone. Ordinarily, these documents would constitute hearsay in court and not be admissible because the evidence would not be given by a live witness who was subject to cross examination. However, Rule 803 (a) (14) & (15) of the RI Rules of Evidence provide special exceptions to the hearsay rule. Records of documents purporting to establish or affect an interest in property are admissible as proof of the content of the original recorded document and its execution and delivery by each person by whom it purports to have been executed, if the record is a record of a public office and an applicable statute authorizes the recording of documents of that kind in that office. R.I.G.L. 34-13-1 is the statute authorizing the recording of all the land evidence records. Vital statistics records of births, deaths, marriages, if the report is made pursuant to a statute, are also made an exception to the hearsay rule. Title affidavits have never been made eligible for recording under R.I.G.L. 34-13-1 and are still technically hearsay in Rhode Island.