Bulletin: OH2017003

Dear Associates:

Governor Kasich signed into law Amended Senate Bill 257, which significantly amends and expands Ohio Revised Code Section 5301.07, Ohio’s title curative statute. The Bill will become law on April 6, 2017. Among the changes to the current statute the curative period has been reduced from the current 21 year period to that of 4 years, and further expands upon the definition of instruments covered by the statute. “Real property instrument” as defined in the amendment will include a deed, mortgage, installment contract, lease, memorandum of trust, power of attorney, or any instrument accepted by the county recorder under Section 317.08 of the Revised Code. A real property instrument delivered to and accepted by the county recorder and that is signed and acknowledged by a person with an interest in the real property described in the instrument will raise the following rebuttable presumptions:

(a) That the instrument conveys, encumbers, or is enforceable against the interest of the person who signed the instrument;

(b) That the instrument is valid, enforceable, and effective as if in all respects the instrument was legally made, executed, acknowledged, and recorded.

The above presumptions may be rebutted by clear and convincing evidence of fraud, undue influence, duress, forgery, incompetency, or incapacity.

The amended statute further provides as follows:

When a real property instrument is of record for more than 4 years, and the record shows that there is a defect in the making, execution, or acknowledgment of the instrument, the instrument and the record thereof shall be cured of the defect and be effective in all respects as if the instrument had been legally made, executed, acknowledged, and recorded.  The defects may include but are not limited to the following:

(1) The instrument was not properly witnessed.

(2) The instrument contained no certificate of acknowledgment.

(3) The certificate of acknowledgment is defective in any respect.

(4) The name of the person with an interest in the real property does not appear in the granting clause of the instrument, but the person signed the instrument without limitation.

A real property instrument recorded in the chain of title provides constructive notice to all third parties of the instrument notwithstanding any defect in the making, execution, or acknowledgment of the instrument. In addition, the amendment states that you must still comply with the Marketable Title Act and Dormant Mineral Act, and that this statute does not affect current statutory provisions regarding forfeiture of oil and gas leases. The statute will apply retroactively as long as doing so won’t affect any accrued substantive right or vested rights in any person or in any real property instrument. 

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