Reprinted with Permission from Guardian Title & Guaranty Agency, Inc. and Kim McNally, Esq.
Big changes are on the horizon for some Deeds that would previously have been
deemed a void conveyance.
Governor Kasich signed SB 117 into law in December, 2011 which will take effect on March 22, 2012. Among other things, the greatest impact for title agents and real estate practitioners is providing that a conveyance into a Trust, rather than to a Trustee of a Trust will not be deemed as a void conveyance on its face. In the past, a conveyance into a Trust was deemed to be void ab initio, as if the Deed had no legal effect at all. However, this is no longer the case under the new statute.
In order for the new curative statute to apply and for a Deed into a Trust to be valid, the Trust must have been in existence at the time of the original conveyance into the Trust, and a Memorandum of Trust must be recorded. In addition, the statute will be retroactive in effect to cure previous conveyances that would have otherwise created a title defect. However, the statute will not set aside previous conveyances made subsequent to any defective deed that would otherwise be cured by this statute.
The curative nature of this statute will be codified into ORC 5301.071(E) and will read as follows:
“No instrument conveying real property, or any interest in real property, and of record in the office of the county recorder of the county within this state in which that real property is situated shall be considered defective nor shall the validity of that conveyance be affected because of any of the following:
(E)(1) The grantor or grantee of the instrument is a trust rather than the trustee or trustees of the trust if the trust named as grantor or grantee has been duly created under the laws of the state of its existence at the time of the conveyance and a memorandum of trust that complies with Section 5301.255 of the Revised Code and contains a description of the real property conveyed by that instrument is recorded in the office of the county recorder in which the instrument of conveyance is recorded. Upon compliance with division (E)(1) of this Section, a conveyance to a trust shall be considered to be a conveyance to the trustee or trustees of the trust in furtherance of the manifest intention of the parties.
(2) Except as otherwise provided in division (E)(2) of this Section, division (E)(1) of this
Section shall be given retroactive effect to the fullest extent permitted under Section 28 of Article II, Ohio Constitution. Division (E) of this Section shall not be given retroactive or curative effect if to do so would invalidate or supersede any instrument that conveys real property, or any interest in the real property, recorded in the office of the county recorder in which that real property is situated prior to the date of recording of a curative memorandum of trust or the effective date of this Section, whichever event occurs later.”
Guardian Title & Guaranty Agency, Inc.
Founded in 1962, Guardian Title is a locally owned and operated business offering residential and commercial title and escrow services through Guardian Title and Guaranty Agency Inc. Other separate entities of Guardian Title are Guardian Equity Services and Guardian Exchange Services. Guardian Equity Services provides fast and accurate service to lending institutions for their equity loans and offers limited lien searches, junior loan policies, flood certifications and evaluation products. Guardian Exchange Services, a qualified intermediary providing exchange services to real estate investors, offers 1031 exchanges, construction exchanges and reverse exchanges. Guardian title was recently honored in the “North Coast 99” - Honoring 99 of the Best Places to Work in Northeast Ohio. Contact Guardian Title at: 7550 Lucerne Drive, Suite 310 Middleburg Heights, Ohio 44130-Phone: (216) 898-4925-Fax: (216) 898-4959 -e-mail: contact@guardiantitle.com
Big changes are on the horizon for some Deeds that would previously have been
deemed a void conveyance.
Governor Kasich signed SB 117 into law in December, 2011 which will take effect on March 22, 2012. Among other things, the greatest impact for title agents and real estate practitioners is providing that a conveyance into a Trust, rather than to a Trustee of a Trust will not be deemed as a void conveyance on its face. In the past, a conveyance into a Trust was deemed to be void ab initio, as if the Deed had no legal effect at all. However, this is no longer the case under the new statute.
In order for the new curative statute to apply and for a Deed into a Trust to be valid, the Trust must have been in existence at the time of the original conveyance into the Trust, and a Memorandum of Trust must be recorded. In addition, the statute will be retroactive in effect to cure previous conveyances that would have otherwise created a title defect. However, the statute will not set aside previous conveyances made subsequent to any defective deed that would otherwise be cured by this statute.
The curative nature of this statute will be codified into ORC 5301.071(E) and will read as follows:
“No instrument conveying real property, or any interest in real property, and of record in the office of the county recorder of the county within this state in which that real property is situated shall be considered defective nor shall the validity of that conveyance be affected because of any of the following:
(E)(1) The grantor or grantee of the instrument is a trust rather than the trustee or trustees of the trust if the trust named as grantor or grantee has been duly created under the laws of the state of its existence at the time of the conveyance and a memorandum of trust that complies with Section 5301.255 of the Revised Code and contains a description of the real property conveyed by that instrument is recorded in the office of the county recorder in which the instrument of conveyance is recorded. Upon compliance with division (E)(1) of this Section, a conveyance to a trust shall be considered to be a conveyance to the trustee or trustees of the trust in furtherance of the manifest intention of the parties.
(2) Except as otherwise provided in division (E)(2) of this Section, division (E)(1) of this
Section shall be given retroactive effect to the fullest extent permitted under Section 28 of Article II, Ohio Constitution. Division (E) of this Section shall not be given retroactive or curative effect if to do so would invalidate or supersede any instrument that conveys real property, or any interest in the real property, recorded in the office of the county recorder in which that real property is situated prior to the date of recording of a curative memorandum of trust or the effective date of this Section, whichever event occurs later.”
Guardian Title & Guaranty Agency, Inc.
Founded in 1962, Guardian Title is a locally owned and operated business offering residential and commercial title and escrow services through Guardian Title and Guaranty Agency Inc. Other separate entities of Guardian Title are Guardian Equity Services and Guardian Exchange Services. Guardian Equity Services provides fast and accurate service to lending institutions for their equity loans and offers limited lien searches, junior loan policies, flood certifications and evaluation products. Guardian Exchange Services, a qualified intermediary providing exchange services to real estate investors, offers 1031 exchanges, construction exchanges and reverse exchanges. Guardian title was recently honored in the “North Coast 99” - Honoring 99 of the Best Places to Work in Northeast Ohio. Contact Guardian Title at: 7550 Lucerne Drive, Suite 310 Middleburg Heights, Ohio 44130-Phone: (216) 898-4925-Fax: (216) 898-4959 -e-mail: contact@guardiantitle.com
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