Landnews

Legality of Title Searches

  • 1.  Legality of Title Searches

    Posted 09-16-2019 16:36

    Quick question if someone could point me in the right direction - I'm looking for information relating to West Virginia and the issue of whether conducting title searches constitutes the unlawful practice of law. Specifically, I have read material detailing that the courts decided that only a licensed attorney could perform these searches and/or an individual working directly with such an attorney. My question is this - if conducting title searches without a license to practice law is illegal, how are title brokers, etc. who use independent contractors in compliance? Any information would be very much appreciated.

    Thank you.



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    Sandra Sprigg
    Waverly WV

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  • 2.  RE: Legality of Title Searches

    Posted 09-18-2019 10:20
      |   view attached
    Sandra:

    Please see the attached Advisory Opinion 2007-01 from the Committee on the Unlawful Practice of Law of the West Virginia State Bar. See particularly item (1) "interpreting documents found in a title search" on page 3.

    I am not an attorney, and this comment is not legal advice. As always, I recommend that you consult with an attorney licensed to practice law in the state in question.

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    Curt Horne CPL
    Pearland TX
    (713) 225-6700
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    Attachment(s)

    pdf
    WV_UPL_AO-2007-01.pdf   118K 1 version


  • 3.  RE: Legality of Title Searches

    Posted 09-18-2019 10:23
    The practice of law in all 50 States, so far as I am aware, hinges on legal advise.

    Research is not legal advise unless you get into the muddy water of advising a client on the research.

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    Marcus Brown, RPL CPLTA CNSA
    Independent Field Landman
    Brown Land Services, LLC
    361-728-5453
    Marcus_r_brown@hotmail.com
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  • 4.  RE: Legality of Title Searches

    Posted 09-19-2019 16:34
    I agree.  Research is not legal ADVICE.  

    You should not ADVISE someone about matters which may entail someone interpreting that ADVICE as practicing law.

    Martin Thompson
    Independent Landman Since 1977







  • 5.  RE: Legality of Title Searches

    Posted 09-24-2019 12:37
    Most lawyers (just like the realtors in Ohio) like to maintain their monopoly, some more than others.  State bar associations and state supreme courts are the chief enforcers and the "unauthorized practice of law" is usually a misdemeanor criminal offense, with fines and jail time possible.

    In my experience and in my opinion [my statement is not to be relied upon as legal advice], if a landman provides "certified title" or any kind of written title report, the landman should include a strong disclaimer, stating that the report is not the equivalent of an attorney's title opinion, and that the report should not be relied upon as legal advice.

    If a landman interprets title issues for a non-lawyer - even answering fairly simple title-related questions - the landman should advise the non-lawyer that the landman's view does not constitute legal advice.  If you explain a life estate to a landowner, that could be viewed as legal advice.  If you explain how a mineral reservation works, that could be viewed as legal advice. If you tell someone they can sell their land but reserve [some of] their minerals, that could be viewed as legal advice.  If you tell someone you have concluded that they own mineral rights, or that they don't, that can be viewed as "practicing law."  If you prepare a title report for your broker, who is not a lawyer, that could possibly be viewed by some people as practicing law, under some circumstances.

    If a landman offends a lawyer by trying to help a landowner understand title issues, some insecure lawyers may file a complaint.  Especially if the lawyer disagrees with the landman's explanation.

    I disagree with the view that title research can never be considered to be legal advice.  Any title research could be considered "legal analysis," or advice, and that can be considered to involve the practice of law, depending on how it is compensated and how it is communicated.  Disclaimers are the best - but not a perfect - defense.



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    [Paul] [Grant]
    Landman-Lawyer
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  • 6.  RE: Legality of Title Searches

    Posted 09-18-2019 10:24
    Hi Sandra,

    i have been closely  involved with this issue over the years and have spoken on the topic several times to various Landman and Legal groups. AAPL has been very active in WV lobbying legislators and protecting the rights of Landmen to be able do what we have always been able to do legally.

    Here's some backgrounder info but its an ever-evolving issue in WV...

    -West Virginia State Bar, Committee on Unlawful Practice of Law –

      Advisory Opinion 2007-01

    ARE LAND MEN PRACTICING LAW?

    The answer to the question of whether any of a landmen' s traditional work involves the practice of law seems self-evident if the issue is presented as a question about the activity of others doing the same work as landmen, but without the deference traditionally given to landmen. Assume that a non-lawyer was:

      (I) interpreting documents found in a title search:

      (2) locating heirs AND having them sign quit claim deeds and leases;

      (3) offering advice to Landowners and mineral rights owners of their legal ownership interest and the meaning of contract language;

      (4) preparing operating agreements and similar contracts to be executed by other parties;

    CONCLUSION

    We do not have a specific complaint before us. Therefore no finding is made that a specific Landman is practicing law. However, the work of a Landmen is neither exempted or excepted from the West Virginia definition of the practice of law. Until the issue is addressed by the West Virginia Legislature, it is the recommendation of the Unlawful Practice Committee that Landmen perform the work, that seems to fit within the prohibition against the unauthorized practice of law, only under the direct supervision and control of an attorney licensed to practice law in West Virginia.

    -Stipulation and Agreed Order entered on March 31, 2010 in the case of McMahon v. 

       Advanced Title Services, Brooke County WV Circuit, CA No. 01-C-121

    Exhibit A to the McMahon case states as follows:

    (1)      Is a lay person not under the direct supervision or control of an attorney licensed to practice law in the State of West Virginia engaged in the unlawful practice of law when performing a title examination, search, review or inspection of records, and providing any certificate, notes (handwritten or otherwise), abstract, summary, opinion, guarantee, verbal verification and/or report of any kind or nature as to the status or marketability of real estate title and/or reflecting matters of record?

              ANSWER:     YES

    (5)      Is a lay person not under the direct supervision or control of an attorney licensed to practice law in the State of West Virginia engaged in the unlawful practice of law by mailing or hand-carrying instruments to the courthouse after the real estate closing for recording when the recordation of instruments takes place as part of a real estate transaction?

              ANSWER:     YES

    -West Virginia State Bar, Committee on Unlawful Practice of Law –

      Advisory Opinion 2010-002 (Amended)

    Though individuals have the right to represent themselves, there is no right to represent another in legal matters unless the person seeking to represent that person is a licensed attorney at law. The West Virginia Supreme Court has the inherent power to define the practice of law in this State, and this committee acts as its agent. Prior opinions of this committee have clearly indicated that the activity of conducting a real estate title examination and real estate closing are the practice of law and cannot be conducted by a lay person unless (1) that person is under the direct supervision and control of a licensed lawyer, or (2) the lay person conducts such activities on behalf of his regular employer as set forth herein. An examination of the complaints before the committee over the last several years has demonstrated an alarmingly wide disparity in the degree of such supervision and control of persons engaged in these activities.

    By Order of the Supreme Court of Appeals of West Virginia entered November 17, 2010 (Case No. 101027) and modified by Order entered January 27, 2011, the Court refused the petition for appeal and, in the modification Order, further found that the findings of the Circuit Court of Brooke County were "plainly right".

    Question 1 from  Letter dated August 7, 2014 from the West Virginia State Bar to M. Shawn Lundy, Penn Stuart Law Firm, concerning UPL Questions:

    QUESTION:  If the client has documentation in its possession which may or may not have been compiled by an attorney or under the supervision of any attorney, but certainly not compiled by myself or my firm, can I review the documentation and give an opinion on the documentation provided by the client with appropriate disclosure.  Would the answer change if I am certain the documentation was prepared for the client (but not by my office) in violation of the UPL guidelines?

    ANSWER:  The McMahon case clearly indicates that title examinations must be conducted by the attorney or another "under the direct supervision and control" of the attorney.  The question posed seems to indicate that though there is some attorney involvement, there is not a direct relationship between the attorney giving the ultimate title opinion and those who are actually conducting the field investigation.  It is the opinion of the Committee that a disclaimer or disclosure would do nothing but encourage the unlawful practice of law by those conducting the search or generating the documentation as described.

    Question 2 from the Letter dated August 7, 2014 from the West Virginia State Bar to M. Shawn Lundy, Penn Stuart Law Firm, concerning UPL Questions:

    Are there any nuances or differences in the UPL guidelines for land agents or title searchers/abstractors who are employees of a company?  In other words, can an employee of the company compile title information for my review?  If so, what disclosures/limitations am I allowed to make in my opinion?

    ANSWER:  If the examination and opinions are for internal use OF THE COMPANY only then this is similar to self-representation.  However, if the "Company" is actually engaged in abstracting and the employees of that company are under the "direct supervision and control" of the Company owners and not the attorney, AND if the abstracts etc. are submitted to others as a statement of title or lien status, this is not "direct supervision and control".  See also UPL opinion 2007-I as a cautionary note.

    Question 3 from the Letter dated August 7, 2014 from the West Virginia State Bar to M. Shawn Lundy, Penn Stuart Law Firm, concerning UPL Questions:
    QUESTION: Lastly, I understand I have to supervise anyone that is independent from me and conducting title research upon which I may give an opinion, but is there a rule or definition as to exactly how much/what kind of supervision is required?

    ANSWER:  This is an open issue.  The Committee considered some time ago proposed guidelines, but declined to implement them based, in part, on the recognition that this would be more of a disciplinary committee issue.  However, in UPL 2010-002 (Amended) the Committee reserved the right to review matters not judicially resolved in McMahon, including a precise definition for what would be considered "reasonable directs[sic] supervision and control" of lay persons.  The Committee has previously determined that distance may, in and of itself, constitute a lack of supervision and control depending on the circumstances.  However, simply having the person being supervised within close proximity does not ensure that proper supervision is being conducted.









     











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    Richard Adkins CPL
    Adkins & Associate Land Services LLC
    Lexington KY
    (859) 219-0593
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  • 7.  RE: Legality of Title Searches

    Posted 09-18-2019 10:25
    I’ve worked for several title companies in West Virginia and they all had at least one, in house attorney who reviewed the work and signed off on it.

    Sent from my iPhone




  • 8.  RE: Legality of Title Searches

    Posted 09-18-2019 10:25
    If you represent clients and provide them with legal advice or assistance with legal matters, you may well be practicing law.  If you work for a company, corporation, association, and not for a client, you are probably not practicing law.  If you are conducting title research to provide results to a broker, you are probably not practicing law - unless you run into an unreasonable judge!

    The West Virginia Supreme Court:
    This court has provided by its rule effective May 1, 1947, that: "The relation of attorney and client exists, and one is deemed to be practicing law, whenever * * *; (3) one undertakes, with or without compensation, to represent the interest of another before any tribunal - judicial, administrative or executive - otherwise than in the presentation of facts, figures, or factual conclusions, as distinguished from legal conclusions in respect to such facts and figures, except that one may appear as agent before a justice of the peace, and a regular bona fide employee [or subcontractor] may perform legal services for his regular employer in matters relating solely to the internal affairs of such employer, as distinguished from such services rendered to others."

    A broker is not the same as a legal client - IMO!

    . . . a licensed attorney at law in the practice of his profession generally engages in three principal types of professional activity. These types are legal advice and instructions to clients to inform them of their rights and obligations; preparation for clients of documents requiring knowledge of legal principles which is not possessed by an ordinary layman; and appearance for clients before public tribunals, which possess the power and authority to determine rights of life, liberty and property according to law, in order to assist in the proper interpretation and enforcement of law.

    . . . it is a misdemeanor for any natural person to practice law in this State without first having been duly licensed and admitted to practice in a court of record in this State and without having taken the oath prescribed by law, Section 4, Article 2, Chapter 30, Code, 1931; or for any corporation or voluntary association to practice law in this State, except a partnership composed of licensed attorneys, a corporation or voluntary association lawfully engaged in examining and insuring titles to real estate, or an association organized for benevolent or charitable purposes or for the purpose of assisting persons without means in the pursuit of any civil remedy. Section 5, Article 2, Chapter 30, Code, 1931.

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    Paul Grant

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  • 9.  RE: Legality of Title Searches

    Posted 09-18-2019 10:26
    In West Virginia, anybody can do a title search, however only an attorney can "certify" it to make it legally binding.  I've worked in West Virginia for 9 years, both for brokers and as an independent, doing mineral and real estate title work with no problems.


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    Lance Boso
    Iron Horse Oil & Gas, Inc.
    Parkersburg WV
    (304) 481-1367
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  • 10.  RE: Legality of Title Searches

    Posted 09-18-2019 12:50
    Lance, what is a "legally binding" title search?

    What does that mean?  Only judges can "decide" a disputed title issue and no lawyer's search can bind a judge.

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    Paul Grant
    Parker CO
    (303) 909-6133
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