Title 27 — Chapter 5: Conveyance of Real Estate
Subchapter I. Manner of Conveying Interests in or Affecting Realty
§ 301. Manner of conveying
Conveyance of land or of an estate or interest therein may be made by deed executed by a person having authority to convey the same, or by his attorney, and acknowledged and recorded as provided in this chapter.
§ 302. Effect of oral conveyance
Estates or interests in lands, created or conveyed without an instrument in writing shall have the effect of estates at will only. An estate or interest in lands shall not be assigned, granted or surrendered unless by operation of law or by a writing signed by the grantor or his attorney.
§ 303. Trusts concerning realty
A trust concerning lands, excepting such as may arise or result by implication of law, shall not be created or declared, unless by an instrument in writing signed by the party creating or declaring the same, or by his attorney.
§ 304. Assignment of lease to be by deed
The assignment of a lease of lands, if the lease is for a longer term than one year, shall be by deed, signed, sealed, witnessed, acknowledged and recorded as provided for deeds in this chapter. An assignment otherwise executed shall be void as against all persons but the assignor, his heirs or devisees.
§ 305. Conveyances effected through power of attorney
A deed or other conveyance of lands or of an estate or interest therein, made by virtue of a power of attorney, shall not be of any effect or admissible in evidence, unless such power of attorney is signed, witnessed by one or more witnesses, acknowledged and recorded in the office where such deed is required to be recorded. (Amended 1973, No. 211 (Adj. Sess.); 1995, No. 6, § 1, eff. March 15, 1995.)
§ 306. -Evidence
When a deed is made by virtue of a power of attorney thus executed and recorded, a certified copy of the record of such power of attorney may be read in evidence when the original cannot be produced.
§ 307. Vendor's liens
The vendor of real estate shall not have a lien thereon for unpaid purchase money, except such lien as is created and evidenced by deed executed, acknowledged and recorded as deeds of conveyance of real estate.
§ 308. Mines and quarries
The grantee of a mine, quarry or of the right of mining and quarrying, in severance from the ownership of the soil, within 30 days after its execution, shall cause his deed, lease or other instrument to be recorded in a book kept for that purpose in the office where by law a deed of the real estate is required to be recorded. A grantee failing to comply with the foregoing provision shall forfeit to the town, or in case such a mine, quarry or right of mining or quarrying is situated in an unorganized town or gore, to the county, $50.00, to be recovered in an action on this statute.
§ 309. Proration of taxes
(a) Unless otherwise expressly stated or agreed, in any offer or contract for the purchase and sale of real property, real property taxes assessed and payable shall be prorated as follows so that as between the parties, but not otherwise:
(1) In municipalities where the municipal tax and the school tax fiscal periods are July 1 to June 30, the seller shall bear the burden of real estate taxes allocable to the period beginning July 1 of that fiscal year and ending on the day before closing. The buyer shall bear the burden of real estate taxes allocable to the period beginning with the day of closing and ending on June 30.
(2) In municipalities where the municipal tax fiscal period is other than July 1 to June 30, the seller shall bear the burden of real estate taxes allocable to municipal taxes for the period beginning on the first day of the municipality's fiscal year and ending on the day before closing. The seller shall also bear the burden for real estate taxes allocable to school taxes for the period beginning July 1 of that fiscal year and ending on the day before closing. The buyer shall bear the burden of real estate taxes allocable to both school and municipal taxes for the period beginning with the day of closing and ending with the last day of the respective fiscal year.
(b) This section shall not abridge or affect any other provision of part 2 of Title 32 relating to assessment of property taxes. (1971, No. 80, § 1, eff. April 16, 1971; amended 2001, No. 90 (Adj. Sess.), § 1, eff. May 1, 2002; 2003, No. 150 (Adj. Sess.), § 2.)
Subchapter II. Execution and Acknowledgment
ARTICLE 1. REQUIREMENTS
§ 341. Requirements generally; recording
(a) Deeds and other conveyances of lands, or of an estate or interest therein, shall be signed by the party granting the same and acknowledged by the grantor before a town clerk, notary public, master, county clerk, or judge or register of probate and recorded at length in the clerk's office of the town in which such lands lie. Such acknowledgment before a notary public shall be valid without an official seal being affixed to his or her signature.
(b) A deed or other conveyance of land which includes a reference to a survey prepared or revised after July 1, 1988 may be recorded only if it is accompanied by the survey to which it refers, or cites the volume and page in the land records showing where the survey has previously been recorded.
(c) A lease of real property that has a term of more than one year from the making of the lease need not be recorded at length if a notice or memorandum of lease, which is executed, witnessed and acknowledged as provided in subsection (a) of this section, is recorded in the land records of the town in which the leased property is situated. The notice of lease shall contain at least the following information:
(1) the names of the parties to the lease as set forth in the lease;
(2) a statement of the rights of a party to extend or renew the lease;
(3) any addresses set forth in the lease as those of the parties;
(4) the date of the execution of the lease;
(5) the term of the lease, the date of commencement, and the date of termination;
(6) a description of the real property as set forth in the lease;
(7) a statement of the rights of a party to purchase the real property or exercise a right of first refusal with respect thereto;
(8) a statement of any restrictions on assignment of the lease; and
(9) the location of an original lease. (Amended 1967, No. 231 (Adj. Sess.), § 1, eff. Jan. 24, 1968; 1973, No. 249 (Adj. Sess.), § 84, eff. April 9, 1974; 1987, No. 220 (Adj. Sess.); 1993, No. 174 (Adj. Sess.), § 1; 1997, No. 86 (Adj. Sess.), § 1; 2003, No. 150 (Adj. Sess.), § 5.)
§ 342. Acknowledgment and recording required
A deed of bargain and sale, a mortgage or other conveyance of land in fee simple or for term of life, or a lease for more than one year from the making thereof shall not be effectual to hold such lands against any person but the grantor and his heirs, unless the deed or other conveyance is acknowledged and recorded as provided in this chapter.
§ 343. Conveyance of wife's real estate
A husband and wife, by their joint deed, may convey the real estate of the wife as she might do by her separate deed if unmarried.
§ 344. Conveyances of joint interests when husband under disability
The wife of a man under guardianship may join with the guardian in making partition of her real estate held in joint tenancy or in common and, with the guardian, may jointly make a release or other conveyance for that purpose, as she might have done with her husband if he had not been under legal disability.
§ 345. Conveyances of wife's realty in which disabled husband has an interest
When the guardian of a married man is licensed to sell the interests of the ward in any real estate of his wife, the wife may join with the guardian in the conveyance and convey her estate and interest in the granted premises as she might have done with her husband if he had not been under legal disability, but this section shall not authorize the conveyance of the ward's estate of homestead.
§ 346. Conveyances by corporation
A public or private corporation authorized to hold real estate may convey the same by an agent appointed by vote for that purpose.
§ 347. Validity of deeds executed under prior law
Deeds of bargain and sale, mortgages or other conveyances of real estate, heretofore made and executed according to former laws and usages in this state, shall be valid and effectual.
§ 348. Instruments concerning real property lacking statement of consideration, or witnesses or acknowledgments, validated
When an instrument of writing shall have been on record in the office of the clerk in the proper town for a period of 15 years, and there is a defect in the instrument because it omitted to state any consideration therefor or was not sealed, witnessed, acknowledged, validly acknowledged, or because a license to sell was not validly issued, the instrument shall, from and after the expiration of 15 years from the filing thereof for record, be valid. Nothing herein shall be construed to affect any rights acquired by grantees, assignees or encumbrancers under the instruments described in the preceding sentence, nor shall this section apply to conveyances or other instruments of writing, the validity of which is brought in question in any suit now pending in any courts of the state. (Added 1977, No. 79, § 1, eff. April 27, 1977.)
§ 349. Conveyance to grantor and others
(a) Without an intervening conveyance a person may convey interests in real estate directly:
(1) to himself in a different legal capacity, or
(2) to his spouse, or
(3) to himself and one or more other persons, including his spouse. A person shall not convey an interest in a tenancy by the entirety or in homestead property to any person except his spouse, unless the spouse joins in the conveyance.
(b) A conveyance made pursuant to this section shall be effective to convey such title as would be conveyed by the deed if the grantor were not also a grantee. (Added 1977, No. 134 (Adj. Sess.); amended 1979, No. 160 (Adj. Sess.), § 1, eff. April 26, 1980.)
§ 350. Change in name or status of owner of real estate
Any person or corporation owning real estate or having an interest in real estate whose name has been changed, and any corporation which has been merged into or consolidated with another, may file with the town clerk of the town in which the real estate is located a certificate giving the names before and after the change, merger or consolidation, and the town clerk shall record and index the certificate in the land records. (Added 1993, No. 174 (Adj. Sess.), § 3.)
§ 351. Estates and trusts; conveyances, satisfactions, grants, and releases
(a) A conveyance or grant of an interest in real or personal property made to the estate of a decedent, to the estate of a ward, to the ward's guardian, or to a trust, including a trust in the form of a pension or profit-sharing plan, that names the estate, the guardian, or the trust as the grantee of the interest is a valid and effective conveyance or grant to the personal representative, to the ward, or to the trustee of the trust, in like manner and effect as if the ward, or the personal representative or trustee in his or her fiduciary capacity, had been named the grantee of the conveyance or grant.
(b) A discharge, mortgage discharge, release, conveyance, grant, or satisfaction of an interest in real or personal property that is made by an estate, a guardian, or a trust described in subsection (a) of this section, that names the estate, the guardian, or the trust as the holder or grantor of the interest, and that is executed by the personal representative or trustee authorized to execute the instrument is valid in like manner and effect as if the personal representative, guardian, or trustee had been named the holder or the grantor in the instrument. (Added 2003, No. 150 (Adj. Sess.), § 3.)
§ 352. Certificate of trust
(a) The settlor or trustee of a trust, at any time after execution or creation of a trust, may execute a certificate of trust that sets forth less than all of the provisions of a trust instrument and any amendments to the instrument. The certificate of trust may be used as evidence of authority to sell, convey, pledge, mortgage, lease, or transfer title to any interest in real or personal property. The certificate of trust shall be upon the representation of the settlors, grantors, or trustees that the statements contained in the certificate of trust are true and correct. The signature of the grantors or trustees must be under oath before a notary public or other official authorized to administer oaths. The certificate of trust must include:
(1) the name of the trust, if one is given;
(2) the date of the trust instrument;
(3) the name of each grantor or settlor;
(4) the name of each original trustee;
(5) the name and address of each trustee empowered to act under the trust instrument at the time of execution of the certificate;
(6) an abstract of the provisions of the trust instrument authorizing the trustee to act in the manner contemplated by the instrument;
(7) a statement that the trust instrument has not been revoked or amended as to the authorizing provisions;
(8) a statement that no provisions of the trust instrument limit the authority so granted; and
(9) a statement as to whether the trust is supervised by any court and, if so, a statement that all necessary approval has been obtained for the trustees to act.
(b) A certificate of trust executed under subsection (a) of this section may be recorded in the land records of the municipality where the land identified in the certificate of trust or any attachment to it is situated. When it is so recorded or filed for recording, or in the case of personal property, when it is presented to a third party, the certificate of trust serves to document the existence of the trust, the identity of the trustees, the powers of the trustees and any limitations on those powers, and other matters set forth in the certificate of trust, as though the full trust instrument had been recorded, filed, or presented.
(c) A certificate of trust is conclusive proof as to the matters contained in it, and any party may rely upon the continued effectiveness of the certificate unless:
(1) a party dealing with the trustee or trustees has actual knowledge of facts to the contrary;
(2) the certificate is amended or revoked under subsection (d) of this section; or
(3) the full trust instrument is recorded, filed, or presented.
(d) Amendment or revocation of a certificate of trust may be made only by a written instrument executed by the settlor or trustee of a trust. Amendment or revocation of a certificate of trust is not effective as to a party unless that party has actual notice of the amendment or revocation. For purposes of this subsection, "actual notice" means that a written instrument of amendment or revocation has been received by the party or, in the case of real property, that either a written instrument of amendment or revocation has been received by the party or that a written instrument of amendment or revocation identifying the real property involved has been recorded in the municipal land records where the real property is situated. (Added 2003, No. 150 (Adj. Sess.), § 4.)
Subchapter II. Execution and Acknowledgment
ARTICLE 2. PROCEEDINGS UPON FAILURE OF GRANTOR TO ACKNOWLEDGE
§ 371. Proving execution when grantor dies or leaves state
When a grantor or lessor dies or leaves the state without acknowledging his deed, the execution thereof may be proved by the testimony of a subscribing witness thereto before a justice of the supreme court, a superior judge or a judge of the superior court. If all the subscribing witnesses to such deed are dead or out of the state, the same may be proved before the supreme or superior court by proving the handwriting of the grantor or lessor and of a subscribing witness or adducing other evidence to the satisfaction of such court. Such evidence entered on such deed or annexed thereto shall be equivalent to the grantor's or lessor's acknowledgment thereof. (Amended 1973, No. 193 (Adj. Sess.), § 3, eff. April 9, 1974.)
§ 372. Proceedings when grantor refuses to acknowledge-Summons
When a grantor or lessor refuses to acknowledge his deed, the grantee or lessee, or a person claiming under him, may apply to a district judge who shall thereupon issue a summons to the grantor or lessor to appear at a certain time and place before him to hear the testimony of the subscribing witnesses to the deed. Such summons, with a copy of the deed annexed, shall be served like a writ of summons, seven days at least before the time therein assigned for proving the deed. (Amended 1973, No. 249 (Adj. Sess.), § 85, eff. April 9, 1974.)
§ 373. -Notice
When such summons is served by leaving a copy thereof at the usual place of abode of the grantor or lessor, and it does not appear that actual notice was given, the judge shall continue the hearing from time to time, not exceeding 90 days, and direct that actual notice be given if the party resides in the state. When such notice cannot be given, the judge shall proceed in the examination as provided in section 374 of this title, and his certificate of the execution of the deed shall have the same effect as therein provided. (Amended 1973, No. 249 (Adj. Sess.), § 86, eff. April 9, 1974.)
§ 374. -Hearing and certificate
When it appears from the officer's return that a copy of such summons was delivered to the grantor or lessor, the judge may take evidence of one or more of the subscribing witnesses to the execution of such deed, at the time designated for hearing or at an adjournment thereof. If such execution is proved to the satisfaction of the judge, he shall certify the same thereon and in his certificate shall note the presence or absence of the grantor or lessor and such certificate shall be equivalent to the acknowledgment of the grantor or lessor. (Amended 1973, No. 249 (Adj. Sess.), § 87, eff. April 9, 1974.)
§ 375. -Witnesses dead or out of state
When a grantor or lessor refuses to acknowledge his deed and the subscribing witnesses to the same are dead or out of the state, it may be proved before the supreme or any superior court by proving the handwriting of the grantor or lessor and of a subscribing witness, such court first summoning the grantor or lessor as provided in this chapter. (Amended 1973, No. 193 (Adj. Sess.), § 3, eff. April 9, 1974.)
§§ 376 Repealed. 1967, No. 231 (Adj. Sess.), § 2, eff. Jan. 24, 1968.
§ 377. Repealed. 1973, No. 249 (Adj. Sess.), § 111, eff. April 9, 1974.
A person interested in a deed or lease not acknowledged may cause the deed or lease to be recorded without acknowledgment before or during the application to the court, or the proceedings before any of the authorities named in sections 371-376 of this title; and, when so recorded in the proper office, it shall be as effectual as though the same had been duly acknowledged and recorded for 60 days thereafter. If such proceedings for proving the execution of the deed are pending at the expiration of such 60 days, the effect of such record shall continue until the expiration of six days after the termination of the proceedings.
§ 379. Acknowledgment out of state
(a) If deeds and other conveyances, and powers of attorney for the conveyance of lands, the acknowledgment or proof of which is taken out of state, are certified agreeably to the laws of the state, province or kingdom in which such acknowledgment or proof is taken, they shall be as valid as though the same were taken before a proper officer or court in this state. The proof of the same may be taken, and the same acknowledged with like effect before a justice, magistrate or notary public within the United States or in a foreign country, before a commissioner appointed for that purpose by the governor of this state, or before a minister, charge d'affaires, consul or vice consul of the United States in a foreign country.
(b) Acknowledgments for deeds and other conveyances, and powers of attorney for the conveyance of lands, which are taken out of state before a proper officer of this state, shall be valid as if taken within the state. (Amended 1993 (Adj. Sess.), No. 174, § 2.)
Subchapter III. Recording
§ 401. Index of deeds by county clerk; penalty
(a) The county clerk shall keep for public use a general index of the record of deeds and other transfers of land recorded in his office, similar to those required to be kept by town clerks, but this section shall not apply to transfers of the title under a judgment or order of court.
(b) A county clerk who neglects to keep the index required in subsection (a) of this section, shall be fined $50.00 for each six months' neglect.
§ 402. Record in county clerk's office
A purchaser of lands, in addition to the record in the town clerk's office, may cause his deed or other conveyance with the certificate of its record in the town clerk's office to be recorded by the county clerk of the county in which such lands lie, in the book kept for the purpose of recording deeds. If the records of a town in which such deed or conveyance is recorded are destroyed, an attested copy of such deed or other conveyance from the office of such county clerk shall be of the same validity as a copy from the town clerk's office.
§ 403. Records when lands lie in unorganized place
Deeds and conveyances of lands in an unorganized town, gore or grant shall be recorded by the clerk of the county in which such lands lie in a book to be kept by him for that purpose, which shall be a sufficient record thereof.
§ 404. Lost instruments affecting property titles; copy recorded in another town
When an instrument in writing affecting the title to real estate in more than one town is lost, destroyed or defaced, if such instrument has been recorded in any town, upon complaint and proof, the superior court may order a copy of such record to be recorded in any town where a part of such real estate is situated. The proceedings upon such complaint shall be the same as in case of judgment files lost or destroyed, and a record so made shall be treated as a record of the original instrument. (Amended 1973, No. 193 (Adj. Sess.), § 3, eff. April 9, 1974.)
§ 405. Vendor to record his title on request
When a person sells and conveys lands, or an estate or interest therein, he shall cause his title deed to be recorded in the proper office within six months after request made in writing by a subsequent purchaser of the same lands or an estate or interest therein.
§ 406. -Proceedings upon vendor's refusal
When such person, after being so requested and after the expiration of such six months, has not procured his deed to be recorded, a judge, on the complaint of the party whose right or title is liable to be affected by such neglect, may issue his warrant to bring such person forthwith before him to be examined in the premises. (Amended 1973, No. 249 (Adj. Sess.), § 88, eff. April 9, 1974.)
§ 407. -Commitment of vendor for refusal
When such person does not show sufficient cause for omitting to procure his deed to be recorded, the judge shall sentence him to jail, there to remain until he procures it to be recorded and pays the costs of the complaint and commitment. Either party may appeal from the decision of such judge as provided in this chapter. Such person shall also be further liable for damages to the party whose right or title is affected in an action on this statute. (Amended 1973, No. 249 (Adj. Sess.), § 89, eff. April 9, 1974.)
§ 408. Recording subordination of liens
An agreement for the subordination of a prior lien or other encumbrance on real property shall be recorded in the land records of the town in which the property is situated, and a reference to the record of the subordination agreement shall be noted on the margin of the record of the instrument affected thereby. If not so recorded, the same shall bind only the parties thereto.
§ 409. Record of assignment by landlord
An assignment of or any agreement affecting the rights or interest of a landlord or owner of real property occupied by a tenant or sharecropper shall be recorded in the land records of the town in which the property is situated. If not so recorded, the same shall bind only the parties thereto.
§ 410. Lien priorities
(a) Definitions. For purposes of this section, the following definitions shall apply:
(1) "Debtor" means a person who owes payment or other performance of an obligation secured, but if the debtor and the owner of real estate are not the same person, the term means the owner of real estate in any provision of this section dealing with collateral.
(2) "Future advances" means funds advanced to a debtor, or other obligations incurred on behalf of a debtor, by a mortgagee after the debtor executes a mortgage.
(3) "Future advances made to protect collateral" means future advances made or incurred:
(A) for the reasonable protection of the mortgagee's interest in the collateral, such as payment of real property taxes, hazard insurance premiums, or maintenance charges imposed under a common interest community declaration or other restrictive covenant; or
(B) under a mortgage, created to enable completion of a contemplated improvement, that secures an obligation which the debtor incurred at the time of execution of the mortgage for the purpose of making an improvement of the real estate in which the mortgage interest is given.
(4) A future advance is made "pursuant to commitment" if the mortgagee is bound at the time the mortgage is created to make it, whether or not a default or other event not within its control has relieved or may relieve it from its obligation. A future advance made "pursuant to commitment" shall also include advances and readvances made pursuant to an agreement whereby the debtor is entitled to borrow and reborrow sums advanced thereunder.
(b) Lien priorities; future advances.
(1) An obligation secured by a mortgage may include future advances, whether or not future advances are made pursuant to commitment.
(2) A future advance made to protect collateral is secured by a mortgage even though the mortgage does not provide for future advances.
(3) Except as expressly set forth in Title 9, chapter 51, subchapter 1, a future advance made under a recorded mortgage takes priority as of the date of the recording:
(A) if made pursuant to commitment, to the extent of the outstanding future advances that do not exceed the maximum amount stated in the mortgage;
(B) if not made pursuant to commitment, to the extent of future advances that are outstanding before the mortgagee receives written notice of the intervening interest.
(4) A future advance made to protect collateral takes priority as of the date a mortgage is recorded, even though the mortgagee has received written notice of an intervening interest at the time the future advance is made.
(c) If a mortgaged property includes a homestead within the meaning of chapter 3 of this title, any future advance made pursuant to commitment shall not require spousal consent pursuant to section 141 of this title, provided that such written spousal consent to the mortgage was previously obtained or was not required at the time of the making of the mortgage.
(d) In the case of conflict between this section and any other provision of law, except for the provisions of Title 9A, this section shall control. (Added 1999, No. 153 (Adj. Sess.), § 32, eff. May 24, 2000.)
Subchapter IV. Mortgages
ARTICLE 1. MACHINERY
§ 441. Manner of mortgaging machinery
Machinery attached to or used in a shop, mill, quarry, mine, printing office or factory may be mortgaged by deed executed, acknowledged and recorded as deeds of real estate. Such mortgages may be assigned, discharged or foreclosed as mortgages of real estate.
§ 442. Attachment and sale of machinery mortgaged with real estate
If machinery is mortgaged with real estate, the equity of redemption in such machinery and real estate may be attached and sold on execution as real estate is sold.
ARTICLE 2. DISCHARGE OF MORTGAGES
§ 461. By entry on record
Mortgages may be discharged by an entry on the margin of the record thereof in the record of deeds, acknowledging satisfaction of the mortgage, signed by the mortgagee or by his executor, administrator, assignee, attorney at law or attorney acting under a duly executed and recorded power of attorney, such signature to be witnessed by the town clerk or assistant town clerk having custody of such record. Such entry shall have the same effect as a deed of release acknowledged and recorded.
§ 462. By acknowledgment of payment
Mortgages may also be discharged by the mortgagee or by his executor, administrator, assignee, attorney at law or attorney acting under a duly executed and recorded power of attorney, acknowledging payment thereof by an entry on the mortgage deed, signing the same in the presence of one or more witnesses, which entry, upon being recorded on the margin of the record of such mortgage in the record of deeds, shall discharge such mortgage and bar all actions brought thereon.
§ 463. By separate instrument
(a) Mortgages may be discharged by an acknowledgment of satisfaction, executed by the mortgagee or his attorney, executor, administrator or assigns, which shall be substantially in the following form:
I hereby certify that the following described mortgage is paid in full and satisfied, viz: _________________________________ mortgagor to _____________________ mortgagee, dated _______ 20__, and recorded in book ______________, page _____________, of the land records of the town of _____________________________.
(b) When such satisfaction is acknowledged before a town clerk, notary public, master, county clerk, or judge or register of probate and recorded, it shall discharge such mortgage and bar actions brought thereon. (Amended 1973, No. 47, § 2, eff. April 12, 1973; 2003, No. 150 (Adj. Sess.), § 6.)
§ 464. Liability of mortgagee for failure to provide payoff statements and refusal to discharge
(a) Within five business days after the mortgagee's receipt of a written request for a statement of the amount of funds or other obligations required to satisfy a note or other obligation secured by a mortgage, the mortgagee shall provide a written payoff statement to the mortgagor. The mortgagee shall not impose a fee or other charge for providing the payoff statement, unless the request specifically asks for expedited service. A request for a payoff statement shall include the name of the mortgagor, the loan number assigned to the loan, and the address of the property securing the loan. If a written payoff statement is not deposited in the U.S. mail, delivered to a courier service, sent by facsimile, or sent by other method of service customarily used for delivery of messages, within five business days after receiving the request, the holder and any servicer shall be jointly and severally liable to any aggrieved party in a civil action for statutory damages equal to $25.00 per day after the expiration of the five business days, up to an aggregate maximum of $5,000.00 for all aggrieved parties; provided, however, any servicer not authorized to issue a payoff statement shall not be liable as set forth herein.
(b) Within 30 days after full performance of the conditions of the mortgage, the mortgagee of record shall execute and deliver a valid and complete discharge as provided in sections 461-463 of this title, together with any instrument necessary to establish the mortgagee's record ownership of the mortgage and to establish the authority to execute the discharge. As used in this section, the term "mortgagee" shall mean both the holder of the mortgage at the time it is satisfied and any servicer who receives the final payment satisfying the debt. If a discharge is not executed and delivered within 30 days, the holder and any servicer shall be jointly and severally liable to any aggrieved party in a civil action for statutory damages equal to $25.00 per day after the expiration of the 30 days, up to an aggregate maximum of $5,000.00 for all aggrieved parties; provided, however, any servicer not authorized to execute such discharge shall not be liable as set forth in this subsection. With respect to a mortgagee securing an open-end line of credit, the 30-day period to deliver a discharge commences after the mortgagor delivers to the address designated for payments under the line of credit a written request to terminate the line of credit and mortgage, together with payment in full of all amounts secured by the mortgage.
(c) The aggrieved party may file an action under subsection (a) or (b) of this section in superior court or, if the action is for monetary damages only and if the ad damnum requested is equal to or less than the maximum jurisdiction of a small claims proceeding, the complaint may be filed as a small claims action.
(d) In addition to any statutory damages, the mortgagee shall also be liable for consequential damages, punitive damages, court costs and reasonable attorney's fees to any aggrieved party who substantially prevails in an action under this section. An aggrieved party may file an action to recover such damages, costs and fees in superior court. The court shall equitably allocate punitive damages among multiple aggrieved parties and may grant such other relief as the court deems appropriate. (Amended 1973, No. 193 (Adj. Sess.), § 3, eff. April 9, 1974; 1999, No. 105 (Adj. Sess.), § 1.)
§ 464a. Discharge by licensed attorney
(a) A recorded mortgage on a dwelling of two units or less occupied by the owner as the owner's principal residence or on farmland may be discharged by an attorney-at-law licensed to practice in this state if the mortgagee, after receipt of payment of the mortgage in accordance with the payoff statement furnished to the mortgagor by the mortgagee, or the mortgagee's agent, fails to make that discharge of the mortgage. The attorney shall execute and record an affidavit in the record of deeds affirming that:
(1) the affiant is an attorney-at-law in good standing and licensed to practice in Vermont;
(2) the affidavit is made at the request of the mortgagor or the mortgagor's executor, administrator, successor, assignee or transferee or the transferee's mortgagee;
(3) the mortgagee has provided a payoff statement with respect to the loan secured by the mortgage;
(4) the mortgagee has received payment of the mortgage in accordance with the payoff statement that has been proved by a bank check, certified check or attorney client funds account check negotiated by the mortgagee or by evidence of receipt of payment by the mortgagee;
(5) more than 30 days have elapsed since the payment was received by the mortgagee; and
(6) the mortgagee has received written notification by certified mail 15 days in advance, sent to the mortgagee's last known address, that the affiant intends to execute and record an affidavit in accordance with this section, enclosing a copy of the proposed affidavit; the mortgagee has not delivered a discharge or acknowledgment of satisfaction in response to the notification; and the mortgagee has failed to dispute payoff of the mortgage.
(b) The affidavit must include the names and addresses of the mortgagor and the mortgagee, the date of the mortgage, the book and page number and similar information with respect to the most recent recorded assignment of the mortgage.
(c) The affiant shall attach to the affidavit the following, certifying that each copy is a true copy of the original document:
(1) photocopies of the documentary evidence that payment has been received by the mortgagee, including the mortgagee's endorsement of a check; and
(2) a photocopy of the payoff statement.
(d) An affidavit recorded under this section has the same effect as discharge under sections 431, 462 or 463 of this title. (Added 1995, No. 162 (Adj. Sess.), § 38, eff. Jan. 1, 1997.)
§ 465. When mortgagee dead
When it appears from the record of a mortgage on real estate that such mortgage is undischarged, and the mortgagee therein named, or the person to whom such mortgage is assigned, is deceased, the owner of such real estate may make written application to the probate court of the district within which such real estate is situated for the appointment of an administrator of the estate of such deceased mortgagee or assignee to discharge such mortgage. The probate court may appoint an administrator of such deceased mortgagee or assignee to discharge such mortgage, if upon hearing and upon payment of the costs of such hearing, he is satisfied that the conditions of such mortgage have been complied with and is further satisfied that there is no person within the state having authority to discharge such mortgage.
§ 466. -Notice to parties
The application provided in section 465 of this title shall state the names and addresses of all parties in interest, so far as they are known to the applicant, and the probate court shall order such notice by registered mail, publication or service of process, as to it shall seem proper to protect the rights of all parties in interest. Failure on the part of a party in interest to receive such notice shall be ground for relief under section 2357 of Title 12, if such party is possessed of enforceable rights which are prejudiced by the discharge of a mortgage as aforesaid.
§ 467. -When death of mortgagee not established
In case the death of a mortgagee or assignee is not established, and the court would have jurisdiction to proceed under sections 2305 and 2306 of Title 14, the court, upon like petition, hearing and proof, may appoint a trustee to discharge such mortgage.
§ 468. -Manner of discharge by trustee or administrator
Such mortgage may be discharged by such administrator or trustee in the manner provided by law for the discharge of a mortgage by a mortgagee. Such discharge shall have the same effect as though made by the mortgagee or assignee thereof when living. An administrator or trustee appointed for such purpose shall have no authority relative to the estate of which he is appointed, other than as herein provided. The judge of such court, in his discretion, may require such administrator or trustee to give bonds as in his opinion the circumstances of the case require.
§ 469. Mortgagee corporation whose charter has expired
When it appears from the record of a mortgage on real estate that such mortgage is undischarged, and the mortgagee named therein, or the assignee of such mortgage, is a private corporation whose charter has expired by its own limitation, or has been dissolved by operation of law, forfeiture, or for any other reason, a complaint may be brought to the presiding judge of the superior court of the county wherein such mortgage is recorded and, after such hearing as said presiding judge may direct, if he is satisfied that the conditions of such mortgage have been complied with, and have no force in law, and is further satisfied that there is no person within the state having authority to discharge such mortgage, he may direct an order discharging such mortgage. Such proceedings shall be without taxation of costs except that the moving party shall bear the costs of such notice as said presiding judge may order. (Amended 1973, No. 193 (Adj. Sess.), § 3, eff. April 9, 1974.)
Subchapter V. Perpetuities
§ 501. Reformation of interests violating rule against perpetuities
Any interest in real or personal property which would violate the rule against perpetuities shall be reformed, within the limits of that rule, to approximate most closely the intention of the creator of the interest. In determining whether an interest would violate said rule and in reforming an interest the period of perpetuities shall be measured by actual rather than possible events.
§ 502. Application of subchapter
This subchapter shall apply only to inter vivos instruments and wills taking effect after the subchapter becomes operative and to appointments made after the subchapter becomes operative including appointments by inter vivos instrument or will under powers created before the subchapter becomes operative. This subchapter shall apply to both legal and equitable interests.
§ 503. Effect on prior interests
This subchapter shall not be construed to invalidate or modify the terms of any interest which would have been valid prior to its enactment.
Subchapter VI. Miscellaneous
§ 541. Deeds of lands held adversely
Deeds, leases and other conveyances of lands, duly executed, acknowledged and recorded, shall have the effect to convey such title therein as the grantor or lessor may have, notwithstanding any actual possession thereof by any other person claiming the same.
§ 542. Fraudulent deeds
Fraudulent and deceitful deeds, conveyances and alienations of lands, or of an estate or interest therein, and charges upon lands or upon the rents and profits thereof, procured, made or suffered with intent to avoid a right, debt or duty of a person, shall be void as against the person, his heirs or assigns, whose right, debt or duty is so intended to be avoided.
§ 543. Highways as encumbrances
When real estate is conveyed by deed, the existence of a highway over or upon any part of such estate shall not be treated as a breach of the covenant of seisin or warranty or any covenant against encumbrances contained in such deed, unless the parties to such deed expressly refer to and covenant against such highway.
Subchapter VII. Marketable Record Title
§ 601. Requirements
(a) Any person who holds an unbroken chain of title of record to any interest in real estate for 40 years, shall at the end of that period be deemed to have a marketable record title to the interest, subject only to such claims to the interest and such defects of title as are not extinguished or barred under this chapter, and such interests, limitations or encumbrances as are inherent in the provisions and limitations contained in the muniments of which the chain of record title is formed which have been recorded during the 40-year period.
(b) For purposes of this section and sections 602 and 603 of this title, "person" shall mean and include any natural person, firm, partnership, corporation, association, executor, administrator, guardian, trustee, fiduciary or any other legal entity, excepting the state of Vermont, political subdivisions of the state, and the United States. (Added 1969, No. 235 (Adj. Sess.), § 2.)
§ 602. Unbroken chain; conditions and suspension
(a) A person shall be deemed to hold an unbroken chain of title to an interest in real estate for purposes of this subchapter when the official public records disclose:
(1) A conveyance not less than 40 years in the past, properly executed and recorded according to law, which purports to create such interest in such person with nothing appearing of record during the 40-year period purporting to divest the person of the purported interest; or
(2) A conveyance not less than 40 years in the past, executed and recorded according to law, which purports to create such interest in some other person and other conveyances or events of record by which the purported interest has become vested in the person first referred to, with nothing appearing of record during the 40-year period purporting to divest the person first referred to of such interest.
(b) No absence, incapacity, disability or lack of knowledge of any kind on the part of any person shall suspend the running of the 40-year period.
(c) For purposes of this section, "conveyance" means any deed, lease, decree or other written instrument proper on its face to transfer title to an interest in real estate under the laws of this state, and also includes the transfer of an interest in real estate by inheritance or descent occasioned by death. (Added 1969, No. 235 (Adj. Sess.), § 2; amended 1971, No. 14, § 16, eff. March 11, 1971.)
§ 603. -Successors in interest; notices of claims, filing for record
A person holding a marketable title under this subchapter shall hold the same, and it shall be taken by his successors in interest, free and clear of any and all interests, liens, claims and charges the existence of which depends in whole or in part upon any act, transaction, event or omission that occurred prior to such 40-year period, whether or not the instrument purporting to create such interest, lien, claim or charge was properly executed so as to validly create the interest, lien, claim or charge, and all such interests, liens, claims and charges are declared void and of no effect either at law or in equity, except that any such interest, lien, claim or charge may be preserved from the effect of this chapter if the holder of the interest files for record within the 40-year period, a notice in writing, duly verified by oath, setting forth the nature of the claim as provided in section 605 of this title. (Added 1969, No. 235 (Adj. Sess.), § 2.)
§ 604. Failure to file notice
(a) This subchapter shall not bar or extinguish any of the following interests, by reason of failure to file the notice provided for in section 605 of this title:
(1) The interest of any lessor or his successor as reversioner of the right to possession on the expiration of any lease or any lessee or the successor to his rights in and to any lease;
(2) Any interest of a mortgagee, or interest in the nature of a mortgagee's interest, until after the obligation secured by the mortgage has become due and payable;
(3) Any interest of a mortgagee, or interest in the nature of a mortgagee's interest, when the instrument creating the interest contains no due date for the obligation secured thereby;
(4) Any interest held by adverse possession not evidenced by a recorded instrument;
(5) Any remainder interest, reverter or reversionary interest or interest arising upon a condition, except an interest arising upon a condition as to the distance between a structure on real estate and a public highway or other property of a municipality;
(6) Any easement or interest in the nature of an easement, the easement, the existence of which is clearly observable by physical evidences of its use; or
(7) Any easement or interest in the nature of an easement, or any rights appurtenant thereto granted, excepted or reserved by a recorded instrument creating such easement or interest, including any rights for future use, except rights and interests created pursuant to chapter 34 of Title 10.
(b) This subchapter shall not affect any right, title or interest in real estate owned or held by the United States, the state of Vermont, or any political subdivision of the state. (Added 1969, No. 235 (Adj. Sess.), § 2; amended 1977, No. 221 (Adj. Sess.), § 2, eff. April 12, 1978; 1985, No. 259 (Adj. Sess.), § 1.)
§ 605. Contents of notice of claim; recording
(a) To be effective the notice referred to in section 603 of this title shall contain a full and accurate description of the land affected by the notice, set forth in particular terms, shall be recorded at length in the land records in the office where a deed of the land is required to be recorded, and shall be indexed in the general index for deeds under the claimant's name as grantee and under the name of the current record owner of the land as grantor.
(b) The notice provided for in this section and section 603 of this title may be filed by a claimant or any person acting on behalf of a claimant if such claimant is:
(1) Under a disability;
(2) Unable to assert a claim on his own behalf; or
(3) One of a class whose identity is uncertain.
(c) When a notice is filed for record under this section, it shall remain effective for a period of 40 years from the date of filing. (Added 1969, No. 235 (Adj. Sess.), § 2; amended 1971, No. 14, § 17, eff. March 11, 1971; 1993, No. 68, § 8.)
§ 606. Limitation of actions
Nothing in this subchapter shall extend the periods for the bringing of an action or suit or for the doing of any act required under existing statutes of limitation, nor affect the operation of existing statutes governing the effect of the recording of or of the failure to record instruments affecting real estate. (Added 1969, No. 235 (Adj. Sess.), § 2; amended 1971, No. 14, § 18, eff. March 11, 1971.)
§ 607. Time-shares; right to cancel
(a) For the purposes of this section a "time-share" means an interest in a project involving real property acquired by means of a time-share estate or a time-share license. A "time-share estate" is a right to occupy a unit or any of several units during separated time periods coupled with a freehold estate or an estate for years in a time-share property or a specified portion thereof. A "time-share license" means a right to occupy a unit or any of several units including renewal options, not coupled with a freehold estate or an estate for years.
(b) A purchaser of a time-share shall have a right to cancel a contract of sale for five days after executing the contract. This right to cancel may not be waived.
(c) If a purchaser elects to cancel a contract pursuant to subsection (b), he may do so by written notice hand-delivered to the seller or mailed to the developer or to his agent for service of process. If mailed, written notice shall be by certified mail and shall be dated on or before the fifth day. Cancellation is without penalty, and all payments made by the purchaser before cancellation must be refunded within fifteen days after receipt of the notice of cancellation.
(d) A contract for the sale of a time-share shall include in a size equal to at least 10-point bold type the language set forth in subsections (b) and (c) of this section. A contract violating this subsection shall be unenforceable. (Added 1983, No. 103 (Adj. Sess.), eff. April 1, 1984.)
608. [Reserved for future use.].
§ 609. Conveyance of standing timber
If standing timber is conveyed by deed or other instrument, with a clause limiting the time for removal, title to any uncut timber remaining on the land at the expiration of the time for removal shall revert to the owner of the fee. (Added 1985, No. 259 (Adj. Sess.), § 2.)
§ 610. Housing subsidy covenants; enforceability
(a) Definition. As used in this section, "housing subsidy covenant" means a covenant the purpose of which is to encourage the development and continued availability of affordable rental and owner-occupied housing for low and moderate income persons. A housing subsidy covenant may be created during ownership or at the time of conveyance by the owner of real property as a condition of:
(1) an allocation of "low income housing tax credits" pursuant to regulations of the agency of commerce and community development;
(2) a grant, loan or contract made by an agency, instrumentality or political subdivision of this state;
(3) a grant, loan or contract made by a nonprofit corporation;
(4) a subsidized loan from any lending institution that makes loans for residential housing; or
(5) a subsidized private transaction.
(b) Restrictions. A housing subsidy covenant may include without limitation restrictions on the use of real property, restrictions on resale price, restrictions on tenant income and rents and restrictions on the income of a purchaser of housing or a housing unit for his or her own residence.
(c) Requirements. A housing subsidy covenant shall be set forth in a separate and distinct document and executed, acknowledged and recorded in the manner provided by law for the execution, acknowledgment and recording of deeds.
(d) Duration. A housing subsidy covenant may be perpetual or may be limited to a period of time specified in the document and may be amended or terminated by written agreement of the owner of the land and all persons or entities holding the right to enforce the covenant. Any amendment or termination shall be executed, acknowledged and recorded as provided in this section.
(e) Enforceability. A covenant that complies with this section shall run with the land and shall be enforceable according to its terms. The covenant may include provisions for monitoring and enforcing compliance. The covenant may be enforced by the person or entity that provided the subsidy of which creation of the covenant was a condition, or by any agency, instrumentality or political subdivision of the state or nonprofit corporation organized for the purpose of promoting affordable housing to whom the right of enforcement has been assigned. (Added 1989, No. 91, § 1; amended 1995, No. 190 (Adj. Sess.), § 1(a).)
§ 611. Remediation certificates
A remediation certificate issued under the provisions of 18 V.S.A. § 1221a, and duly recorded under the provisions of 18 V.S.A. § 1221b, shall correct any title deficiencies under this subchapter that were caused by the absence of a subdivision permit required under the provisions of 18 V.S.A. chapter 23. (Added 1993, No. 187 (Adj. Sess.), § 4, eff. Sept. 1, 1994.)
§ 612. Municipal permits
(a) Notwithstanding the majority decision in Bianchi v. Lorenz (1997), for land development, as defined in 24 V.S.A. § 4303(3), no encumbrance on record title to real estate or effect on marketability shall be created by the failure to obtain or comply with the terms or conditions of any required municipal land use permit as defined in 24 V.S.A. § 4303(24).
(b) A purchaser shall have the right to terminate a binding contract for the sale of real estate if, prior to closing, the purchaser determines and gives written notice to the seller that land development has occurred on the real estate without a required municipal land use permit or in violation of an existing municipal land use permit. Following the receipt of written notice, the seller shall have 30 days, unless the parties agree to a shorter or longer period, either to obtain the required municipal land use permits or to comply with existing municipal land use permits. If the seller does not obtain the required municipal land use permits or comply with existing municipal land use permits, the purchaser may terminate the contract if, as an owner or occupant of the real estate, the purchaser may be subject to an enforcement action under 24 V.S.A. § 4496. (Added 1997, No. 125 (Adj. Sess.), § 5, eff. April 27, 1998; amended 1999, No. 46, § 8, eff. May 26, 1999.)
§ 613. Stormwater discharge permits during transition period
(a) In addition to the following, the definitions found in section 1264 of Title 10 apply to this section unless otherwise indicated. As used in this section:
(1) "Conveyance" means any conveyance of real property or an interest or estate therein where recording is required under this title and where the real property is located within an impaired watershed.
(2) "Impaired watershed" means a watershed where the receiving water or a segment of the receiving water is a stormwater-impaired water.
(3) "Pretransition stormwater discharge permit" means any permit issued by the secretary of natural resources pursuant to section 1264 of Title 10 on or before June 30, 2004 for a discharge of stormwater.
(4) "Refinancing" means the refinancing of an existing loan on real property located within an impaired watershed.
(5) "Stormwater discharge permit" means any permit or approval issued by the secretary pursuant to sections 1264 and 1264a of Title 10 on or after July 1, 2004, and includes coverage under any general permit covering stormwater runoff into stormwater-impaired waters.
(b) Beginning on July 1, 2004, and notwithstanding any law to the contrary, no encumbrance on record title to real property or effect on marketability of title shall be created by the failure of the holder of real property from which regulated stormwater runoff discharges to an impaired watershed to obtain, renew, or comply with the terms and conditions of a pretransition stormwater discharge permit for a conveyance or refinancing, provided that such holder:
(1) Provides a notice of deferral of permit to the secretary of natural resources with a property description, the identity of the impaired watershed, the permit number of any expired pre-transition stormwater discharge permit covering the property, and such other information as the secretary may require; and
(2) Records in the land records a notice indicating, in an appropriate form to be determined by the secretary of natural resources, that at the time of establishment of a general permit in the impaired watershed where the real property is located, but not later than September 30, 2007, the mortgagor (in the case of a refinancing) or the grantee (in the case of a conveyance) shall be subject to all applicable requirements of the water quality remediation plan, TMDL, or watershed improvement permit established under chapter 47 of Title 10.
(c) Subsection (b) shall not apply in cases in which, on or after July 1, 2004, the owner of the real property from which regulated stormwater runoff discharges to an impaired watershed to be conveyed or refinanced engages, contracts to engage, or assists the engagement by others in expansion or redevelopment without first obtaining a stormwater discharge permit from the secretary of natural resources pursuant to sections 1264 and 1264a of Title 10.
(d)(1) After July 1, 2004, a purchaser of real property shall have the right to terminate a binding contract for the sale of real property from which regulated stormwater runoff discharges to an impaired watershed if, after a contract for sale has been signed but prior to closing, the purchaser determines and gives written notice to the seller within 30 days of discovery of any of the following:
(A) That "expansion" or "redevelopment" as defined in section 1264 of Title 10 occurred on the subject property on or after July 1, 2004 without the seller or other party first obtaining a stormwater discharge permit required pursuant to sections 1264 and 1264a of Title 10; or
(B) That the seller has failed to renew or comply with the material terms and conditions of any pretransition stormwater discharge permit or stormwater discharge permit; or
(C) That the seller has failed to comply with the notice requirements of subsection (b) of this section.
(2) Following the receipt of written notice, the seller shall have 30 days, unless the parties agree to a shorter or longer period, either to obtain a stormwater discharge permit or to take reasonable steps to demonstrate compliance with the terms and conditions of a stormwater discharge permit. If the seller does not obtain the required stormwater discharge permit or comply with the terms of a stormwater discharge permit, the purchaser may terminate the contract if, as an owner or occupant of the property, the purchaser may be subject to an enforcement action under section 1274 of Title 10.
(e) This section shall not apply to any impaired watershed for which the secretary of natural resources has issued a watershed improvement permit, submitted a total maximum daily load to the U.S. Environmental Protection Agency, or established a water quality remediation plan. (Added 2003, No. 140 (Adj. Sess.), § 6.)