Common Issues in Preparation of a Title Opinion
Title Standards generally represent the consensus of the lawyers drafting the standards and a majority of the lawyers who practice in the area of real property. They may be accepted as establishing a standard of care under which a title examiner should operate with a given fact situation. Although title standards generally do not have the force of law, courts have relied upon title standards when addressing matters involving title issues.5
In the past, various states have enacted title standards into law.6 “In 1947, title standards in Nebraska were enacted into law by adoption of the Nebraska Marketable Title Act which made the existing standards the legal standard of marketable title.”7 “Subsequently, the title standards were repealed and no longer have the force of law.”8 “Reasons cited for the repeal of the legislation were that as legislation it was difficult to amend and keep the standards current; new standards proposed by the bar were given no recognition until enacted into law; and as legislation the standards lacked sufficient flexibility.”9 To our knowledge, only one state, South Dakota, currently codifies its title standards in its state statutes.10 However, the introduction to the South Dakota title standards, codified in the South Dakota Codified Laws, Appendix to Chapter 43-30, provides:
The State Bar of South Dakota Title Standards a
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