Secretary of StateVermont Municipal Monthly, June, 1998
Secretary of StateGreetings...
As you know, the 1998 Legislature responded to the 1997 Bianchi v. Lorenz decision by passing Act 125, "An Act Relating to Recording of Instruments and Documents Required to Determine Marketability of Record Title." Some sections of the Act were effective upon passage, and all of it will be effective July 1.
In compliance with Section 8, which directs us to notify appropriate municipal officials of the requirements of the Act, we include in this month's Vermont Municipal Monthly a question and answer section on the new provisions. We also are including a copy of the law in the mail edition that goes to each municipal clerk. Our Web readers may find the text on the Legislature's Web site.
Please make an extra effort this month to see that this material is well-circulated within the town offices, particularly to all appropriate planning and zoning personnel.
More than 100 clerks have returned municipal records questionnaires from last month. We appreciate your help. Anyone who needs another copy may find one on our Web site. Your response assists us in complying with our Legislative mandate to survey the condition of Vermont's municipal records.
It feels as though I've heard from nearly as many clerks about my reminder last month that you all have to work on Labor Day! Sad to say, it's true: because Labor Day this year happens to be the day before the Primary, all municipal clerks' offices must keep regular hours to accept applications for absentee ballots.
While you have your calendar out, please mark two up-coming elections workshops, to be conducted by Elections Director Ellen Tofferi via Vermont Interactive Television. The sessions will be on Wednesday, July 29, from 1 to 3 p.m., and on Wednesday, August 5, from 7 to 9 p.m.
If you would like an e-mail each time Vermont Municipal Monthly is posted, let us know at publist@sec.state.vt.us.
-- Jim Milne
Secretary of State
jmilne@sec.state.vt.us
CONTENTS
- What does Act 125 do?
- What does Act 125 NOT do?
- What does Act 125 mean for clerks?
- What other records now join the deeds?
- What should a municipal memorandum or notice contain?
- How should these documents be indexed?
- Who pays for recording these documents?
- Why would the recipient of a permit be called a "grantor" of that permit?
- What does Act 125 mean to planning and zoning administrative officers?
- Can general indices be computerized?
- Whom can I contact about computer indexing issues?
The Act means different things to different people, but in the minds of lawyers and real estate professionals, its immediate effect is that planning and zoning irregularities concerning development commenced prior to the bill's being signed on April 27, 1998, will no longer create a cloud on title to real estate. The Bianchi decision meant that the absence of a necessary permit, for example, might cloud a title, even though the permit may have been issued and the record merely discarded. What does Act 125 do?
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In general, the Act sets out a course by which a municipality's collection of regulatory records will come to be more complete, better indexed and therefore more accessible.
Specifically, the Act requires that a host of regulatory permits, notices and certificates now be recorded in the land records. Under Bianchi, planning and zoning irregularities may continue to create title issues going forward, but the relevant regulatory records now will be available. Over time, the effect of the Act will be realized in the incremental building of a comprehensive, well-indexed collection of all records pertaining to the regulatory status of and the title interests in Vermont land.
The Act also sets out limitation periods for zoning enforcement issues, the details of which are listed in Section 4. These limitations are generally intended to protect a bona fide purchaser, without protecting any individual who created the zoning or planning irregularity.
The operation of these limitations is somewhat complex and as particular cases arise, planning and zoning administrative officials will want to seek legal advice.
Some important things are NOT changed by the law. It does not cure "use" issues that may exist as the result of permitting irregularities, for example. What does Act 125 NOT do?
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If a house has a deck built in 1997 that is non-compliant, the deck remains non-compliant and is still subject to enforcement.
What the Bianchi decision did was to make a non-compliant deck a cloud on the title. Act 125 amends that with a retroactive dispensation. After Act 125, last year's non-compliant deck is no longer a cloud on the title. But going forward under Bianchi, next year's non-compliant deck will be.
What does Act 125 mean for clerks?
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The clerk's function continues to be ministerial, but there are some changes. In a nutshell, Act 125 instructs clerks to be accommodating in accepting documents for inclusion in the land records, and to be thorough when it comes to indexing.
The spirit of the law is that we are all best served when more information is available rather than less. That means recording memos and notices along with the deeds, and it means keeping track of where they are, so that anyone who looks will easily find them.
What other records now join the deeds?
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The law instructs clerks to record the following with the land records:
- "municipal permits relating to land, structures, and other improvements to the land, including zoning, planning, subdivision, site plan, health, street, building, or other municipal permits or approvals required by statute, ordinance or regulation to be recorded, minutes of meetings that relate to municipal permits, and permit amendments,
- "certificates of occupancy, certificates of compliance or similar municipal certificates,
- "any notice of violation of any municipal permit, approval, condition or certificate, and
- "written statements of an appropriate authorized municipal officer, issued on request of a party, certifying that no municipal permit, including a certificate, zoning, building, highway access, health or other permit or approval is required for a specific property."
What should a municipal memorandum or notice contain?
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The Act doesn't define a memorandum or notice, nor does it indicate how long one might be. Such a document apparently could consist of a single sentence.
The Act does specify, however, that a municipal memorandum or notice must list:
- as grantor, the owner of record title to the property at the time the permit, certificate or notice is issued;
- as grantee, the municipality issuing the permit, certificate or notice;
- the municipal or village office where the original, or a true, legible copy of the permit, certificate, statement or notice may be examined;
- whether an appeal of such permit, certificate or notice has been taken;
- tax map lot number or other description identifying the lot.
How should these documents be indexed?
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With respect to bound volumes, the Act makes clear that each book shall have its own index. It also specifies:
- Each owner of record title to a property at the time of a defined "transaction(s) affecting title to real estate" including deeds, memoranda and notices, shall be listed as the grantor.
- Instruments regarding hazardous waste site information, hazardous waste storage, treatment and disposal certifications shall be recorded in the land records and the State of Vermont shall be listed as the grantee.
- Underground storage tank information shall likewise be recorded in the land records and the State of Vermont listed as the grantee.
- In the case of municipal permits, certificates of occupancy and similar instruments, the municipality issuing the instrument shall be listed as the grantee.
Who pays for recording these documents?
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The Act provides that the property owner, rather than the municipality or any of its officials, shall be responsible for any recording fees.
Why would the recipient of a permit be called
a "grantor" of that permit?RETURN TO 'CONTENTS'
That's not quite what the Act says. The owner's status as grantor refers to the chain of title, not the permit. Thus the permitee of the permit is the (eventual) grantor of the title.
Although this convention may strike the uninitiated as a reversal of conventional terminology, by associating the documents with the name of the property owner, it provides a distinct advantage in making the existence of documents so indexed immediately evident to anyone searching a title.
What does Act 125 mean to planning and zoning administrative officers?
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The Act eliminates the need to conduct historical review of records that may never have been intended for retention, such as permits, certificates of occupancy, or enforcement letters in the planning and zoning office. Zoning and planning officials should no longer be called upon to search such records in response to Bianchi title issues.
The Act does call for an enhanced land record keeping system going forward, with regular forwarding of certain kinds of records to the municipal clerk for recording.
It specifies which zoning and planning documents are to be considered "of record" for this purpose and provides a means by which zoning and planning officials may discharge their new reporting duties.
Can general indices be computerized?
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Yes, the Act specifically authorizes electronic general indices.
Act 125 also creates a study committee that will report back to the Legislature next January with recommendations on the computerization of Vermont's land records. The committee is charged with studying the "feasibility, cost, obstacles, and ways in which to computerize Vermont's land records in the towns so that Vermont land titles may be more easily, more reliably and less expensively searched."
It is to consider, among other options, the creation of form deeds and mortgages to identify encumbrances on title; the need for authorized electronic signatures; and mechanisms for financing a town computerized land records system.
Whom can I contact about computer indexing issues?
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The committee will consist of Deputy Secretary of State John Howland Jr., State Archivist Gregory Sanford, Milton Town Clerk John Cushing, Poultney Town Clerk Patricia McCoy, Burlington Attorney James Knapp, and a representative to be named by the Vermont League of Cities and Towns.
The committee will have a Web presence, where any interested official or other citizen can keep abreast of what's going on. Web and contact addresses will be posted on the Secretary of State's Home Page and in future issues of Vermont Municipal Monthly.