I recently wrote about Conflicting Claims Of Ownership and the effect of Ohio's Marketable Title Act ("the Act") on the claimants.  That blog was about two claimants that both had an independent chain of title to the same property, and both had been paying taxes.  There seemed to be no clear answer as to which individual actually owned the land.  However, a filing in the Notice Index would have preserved an interest that otherwise may have been lost due to the application of the Act.  Had a proper notice been filed, there would have been no doubt about the true owner's title.

As I mentioned in Conflicting Claims Of Ownership, the Act is a statute of limitations in that it requires stale demands to be asserted within a reasonable time after a cause of action has accrued.

Any person having the legal capacity to own land in this state, who has an unbroken chain of title of record to any interest in land for forty years or more, has a marketable record title to such interest ... subject to [certain exceptions].

The problem that this creates is that when you have two independent chains of title extending back more than 40 years, searching either chain of title will not reveal the interest claimed by the other.  That was the problem we had with the search discussed in the previous blog. 

An Ohio Supreme Court case decided that it does not matter if the title transaction that purports to preserve an interest would only be discovered in an independent chain of title, Heifner v. Bradford, 4 Ohio St. 3d 49, 52 (Ohio 1983).

[W]e are convinced that the General Assembly ... intended that a title transaction under R.C. 5301.49(D) ... may be part of an entirely independent chain of title.

This result seems contrary to the intent of the legislature when it created the Act and the Notice Index.  They seemed to realize that when there are independent chains of title to a parcel, an examiner would not discover the interest claimed by the purported owner through the other chain because the names he would have to search to discover the interest would not appear in the chain of title for his search.  Thus, the Act included a method for preserving interests by filing a notice, geographically, in the Notice Index.

§ 5301.51. Preservation of interests

(A) Any person claiming an interest in land may preserve and keep effective the interest by filing for record during the forty-year period immediately following the effective date of the root of title of the person whose record title would otherwise be marketable, a notice in compliance with section 5301.52 of the Revised Code.

§ 5301.52. Contents and filing of notice

...

(B) The notice shall be filed for record in the office of the recorder of the county or counties where the land described in it is situated. The recorder of each county shall accept all such notices presented to him which describe land situated in the county in which he serves, shall enter and record them in the deed records of that county, and shall index each notice in the grantee deed index under the names of the claimants appearing in that notice and in the grantor deed index under the names of the record owners appearing in that notice. Such notices also shall be indexed under the description of the real estate involved in a book set apart for that purpose to be known as the "Notice Index."

Furthermore, there are certain interests that can only be preserved by filing a notice.  Possibilities of reverter, and rights of entry or powers of termination for breach of condition subsequent, which interests are inherent in the muniments of which such chain of record title is formed and which have existed for forty years or more, shall be preserved and kept effective only by filing an affidavit in the Notice Index.

This is a good system that should work.  When someone claims ownership through a completely separate chain of title, the only way for an examiner to find any indication of it would be to search geographically for a properly filed notice.  The problem with the Notice Index, however, is that it is not likely used by the counties or the examiners.

Just out of curiosity, I asked one of our examiners to check with each of the four counties we cover to find out if they still maintain the Notice Index.  One county couldn't find its Notice Index and told us that it may have been misplaced when they moved into their new office.  The other three offices all had the Notice Indices available, though they were covered in dust.  Unfortunately, having a Notice Index and using it are two completely different concepts.

One county recorder thought is was quite a coincidence that we had asked about it.  She had recently discovered the index and had been trying to figure out what it was for.  When we explained the purpose of having the geographic index, the recorder quickly dismissed it and said, "we don't do geographic indexing."  Everything goes on the computer, she reminded us.

In another county, the recorder was familiar with the index and understood what it was for.  However, because there has only been one notice filing in that county since the Notice Index was mandated, and everything is now filed in the computer, she does not intend to use it.  She wasn't concerned about the requirement that such notices are required to be indexed geographically because, "no one files anything in it anyway."

Despite the false sense of security found with the new computer indexing systems, failure to maintain the hardbound books for this purpose makes the Notice Index useless.  Though most computers allow some rudimentary form of geographic index, there are so many filings in each township that the search results would return way to many documents to ever find a notice without knowing the parties' names.

Not surprisingly, most of the abstractors around here don't know what the Notice Index is, either.  This was evident by the layers of dust on the books that we were able to find.

Also, it would appear from the sparse filings in the Notice Index that those who should be using this method to preserve their interests are unaware of the proper procedure.  I would even hazard a guess that most attorneys who would be in a position to advise clients to make a notice filing are unfamiliar with the index as well. 

Ohio recorders, abstractors, examiners, attorneys, and other real estate professionals, clearly need further guidance on the proper use of the Notice Index.  Clarification from the government, perhaps the Attorney General's office, is needed to reinforce the necessity of maintaining the Notice Index in a separate book index.  The Notice Index is a valuable tool for preserving pre-root interests that may otherwise be extinguished by the Marketable Title Act.  However, it only serves its purpose if more people understand what it is and how it how it works... and, it is properly maintained by the county recorders' offices.  For now, the Notice Index remains the index that nobody notices.

Robert A. Franco
SOURCE OF TITLE