by Manus E. Holmes*
I. INTRODUCTION
The basic steps in recording and retrieving documents has not changed in years. A person who wishes to sell a piece of property to which he or she claims title (the grantor) will execute a deed conveying it to the person who wants to buy it (the grantee). The deed will include a specific physical description of the property being conveyed. However, the mechanics in how these steps are taken has changed.1
Traditionally, a title examiner consults an index based on the names of the parties involved and then locates and views full copies of the documents themselves which may be in paper form, on microfilm, or on a computer. This process can be time consuming especially if the examiner is unfamiliar with the particular Clerk’s Office that he or she is working in because the manner in which land records are kept in various Circuit Court Clerk’s Offices in the Commonwealth of Virginia varies.2
Today various states around the country are passing legislation which would enhance land records technology. In Virginia, the 1997 General Assembly directed the establishment of the Virginia Land Records Management Task Force. Its main purpose was to make recommendations as to statutory improvements for a modern land records management system. The Task Force adopted a strategic plan identifying several goals as its vision of a modern land records system. Two of them are:3
1. Uniform content and format of land records to promote their usefulness in integrated local government information systems and to promote data sharing and electronic access.
2. Uniform standardized indexing and automation procedures that support statewide electronic remote access to those land record indexes maintained by Clerk’s of Court.
II. LEGISLATION
The Task Force made several recommendations on how to set standards concerning technology and the content and the format of land records. The recommendations resulted in the enactment of two pieces of legislation by the General Assembly: Section 17.1-227.1 and Section 17.1-252 of the Code of Virginia.
Section 17.1-227.1. provides:
Use of cover sheets on deeds or other instruments by circuit court clerks. Circuit court clerks may require that any deed or other instrument conveying or relating to an interest in real property be filed with a cover sheet detailing the information contained in the deed or other instrument necessary for the clerk to properly index such instrument. The cover sheet shall be developed in conjunction with the Supreme Court of Virginia.
The cover sheet shall not be included as a page for determining the amount of any applicable filing fees pursuant to subdivision A2 of Section 17.1-275, nor shall the cover sheet be construed to convey title to any interest in real property or purport to be a document in the chain of title conveying any interest in real property.
Va. Code § 17.1-227.1 (Supp. 2000).
This piece of legislation gives each Circuit Court Clerk’s Office the option of requiring that all land records to be recorded be accompanied by a cover sheet. Its intent is to standardize information for the clerks so that land records can be indexed properly and more expediently. However, the effect will be that clerks will no longer review the actual executed documents to determine how to index them. They will instead only look at the cover sheet that accompanies it. This will place an additional burden on attorneys and title companies to make sure that the cover sheets are filled out accurately. For example, a document to be recorded may in fact be executed correctly. However, if the cover sheet is filled out in error, the document may be indexed incorrectly. (The clerks may only look to the cover sheet and not even notice a deviation between it and the recorded document.) Or suppose someone records a deed and Deed of Trust in the proper order. However, a mishap occurs and the cover sheets are mixed up. Just prior to recordation, the Deed of Trust’s cover sheet is attached to the deed and vice versa. Is the Deed of Trust indexed first and therefore not a valid lien?
In any event, a few circuit courts in Virginia are currently requiring the use of cover sheets. There is a software program which automates the production of these land records cover sheets and is distributed free of charge by ILS, Inc., the developer of the software program and the Virginia Supreme Court at <www.landsystems.com>.
Proponents for the use of cover sheets argue that this could pave the way for more standardized forms in the drafting of documents. A majority of documents filed for record in a typical Circuit Court Clerk’s Office fall into several routine categories: warranty deeds, deeds of trust, and easements, to name a few. It is likely that 80 to 90 percent of all documents recorded can be written on roughly 20 to 25 standardized forms with little or no variable material except the date, names of the parties, land description, designation of the type of instrument, and other context specific items.4 With this procedure, the index itself would supply the examiner with all the information he needs about a majority of the documents recorded in the Clerk’s Office. This procedure would especially be feasible for those jurisdictions which already have computerized indexes. The original document, which would be on a standard form could be used to provide direct input onto the computer, which could be programmed to automatically create indexes.
Section 17.1-252 provides:
Indexing by tax map reference number. Circuit court clerks in those localities with a unique parcel identification system shall require that any deed or other instrument conveying or relating to an interest in real property bear, on the first page of the deed or other instrument, the tax map reference number or numbers, or the parcel identification number (PIN) or numbers, of the affected parcel or parcels. Upon admitting the deed or other instrument to record, the clerk may, in addition to any other indexing required by law, index the deed or other instrument by the tax map reference number or numbers or by the parcel identification number or numbers.
Va. Code § 17.1-252 (Supp. 2000).
This piece of legislation makes it mandatory that all land records submitted for recordation be accompanied by a parcel identification number. Its intent was to have an accurate parcel identification of property affected by the recorded instrument. However, its effect may be to cause confusion. Many tax parcels change tax map reference numbers occasionally. Or suppose you are recording a document that affects only a small piece of property that is carved out of a larger acreage. That tax map reference number would not accurately identify the property affected by the newly recorded document but the entire acreage that it came out of. Or suppose you have an accurate survey attached to a deed to be recorded which shows the property as containing 6.3 acres. However, the tax map, which is often incorrect, shows the parcel as containing only 5.7 acres.
Proponents for the use of tax map reference numbers argue that a system such as this could also increase the quality of services of local government. Around the country, parcel identifier systems are used not only for title records, but also for all of the functions of government—transportation, land use planning, public facilities, law enforcement, etc.
III. CONCLUSION
The method of recording and retrieving land records has not been changed significantly for hundreds of years. With today’s technology, there is no reason to continue using such time consuming and frustrating procedures. While some clerk’s offices have attempted to adopt new methods to make their land records management systems more efficient, those new methods may prove to be inefficient. These new technologies may increasingly handicap the activity that they were designed to improve. Perhaps efficient guidelines will accompany the enactment of these two new pieces of legislation and will assist us in our transition into a new era in land records management.
*Manus E. Holmes is Associate Counsel at Southern Title Insurance Corporation in Richmond, Virginia. He also is an Area Representative for the Central Region and the Liaison to Old Dominion Bar Association of the Real Property Section of the Virginia State Bar.
1 Current Process: Recording, Searching, and Retrieving Land Records, 28 REAL ESTATE L. J. 99 (1999).
2 Prior to becoming Associate Counsel at Southern Title, Manus E. Holmes was a title examiner.
3 Information was obtained from the Commonwealth of Virginia Land Records Management Task Force's Interim Report, dated September 1, 1997, and entitled "Plan To Modernize Land Records."
4 The statistics were obtained from AMERICAN PROPERTY LAW, CASES, HISTORY, POLICY AND PRACTICE (1982).
Exhibit A - ILS version of cover sheet (.tif image)
Exhibit B - Norfolk Circuit Court version of cover sheet (.rtf text file)