A formal search and opinion by an attorney is often unnecessary when addressing neglected properties. Code enforcement staff and other government personnel will typically rely on the techniques described in the Section on Locating the Property Owner to identify the owner of a property. However, sometimes a deeper understanding of ownership interests may be required. For example, prior to spending public dollars on a demolition project, a community may conduct a title opinion to avoid getting dragged into court for failing to provide notice to the correct property owners. Generally, any time a community anticipates litigation with a landowner, a title opinion may prevent attorney’s fees later in the process, specifically if the community plans to institute a suit to quiet title, to partition, or for eminent domain.
The “Bundle of Sticks” Ownership interests are often described as a “bundle of sticks” or a “bundle of rights.” Each stick represents an interest that a person or organization may own for the same piece of property:
- Occupy the land
- Sell the land
- Drill for oil or mine coal on the land through a lease
- Subdivide the land
- Use the land for collateral on a loan
- Collect mortgage payments
- Force the sale of the land to collect fees for a tax lien or other judgment lien (such as a mechanic’s lien or child custody judgment)
The City of Wheeling conducts full title opinions when we anticipate litigation with property owners.
Rosemary Humway-Warmuth, City Solicitor for the City of Wheeling, West Virginia
No Prerequisites
1 Roger A. Cunningham et al., The Law of Property: Hornbook Series Student Edition 824 (2d ed. 1993).
Advantages
- Provides a full understanding of ownership interests, including whether a bank holds a mortgage on the property and whether the property has been leased for coal, oil, or gas extraction
- Describes whether the current owner has good and marketable title—even if someone’s name is on the deed to the property, another person or organization may have ownership interests that prohibit the complete transfer of the property to a new owner
Disadvantages
- Requires a significant amount of time
- Can be costly
- The way records are catalogued or recorded can create questions of reliability1
- Attorneys commonly limit their searches to the most recent 40 to 60 years, creating a risk that unexamined documents could adversely affect the title
Title - the legal evidence of a person’s ownership rights in the property.
Good and Marketable Title - The title is good if it is free from any encumbrances,
such as mortgages, liens, and severed mineral interests. The title is marketable
if it can be transferred to a new owner without the likelihood of litigation.
Encumbrance – a claim against the property that could cloud the title. For
example, a mortgage. For more information on clouds of title see Appendix I.
A title opinion can also show whether, and to what extent, the ownership interests are fractured. For example, in the City of Charles Town, a person claiming an ownership interest had a 1/420th interest in the property.
Funding
The cost of hiring an attorney to conduct a title examination and draft a title opinion varies widely. Additionally, estimating the cost of a title opinion can be difficult because searching the records contained in the county clerk’s office can be unpredictable. Often, an attorney will encounter factors and variables during a record search that they cannot foresee or control. However, if a new owner is purchasing a property, the cost of the title opinion may be shifted away from the local government to the purchaser.
Usage in West Virginia
While seldom used, the title opinion may be useful when an informal search fails or when additional information is needed to prepare for pending litigation.
Community Highlight
The City of Spencer, West Virginia, does not typically utilize title opinions when dealing with dilapidated and abandoned buildings, according to Tom Whittier, the City’s attorney. Mr. Whittier explained that one reason the City does not request title opinions is that they are costly. However, given that Spencer is a small community, it is fairly easy for the City to determine and locate the owners of a property through informal searches, which may be difficult for larger communities. Generally in Spencer, one of the city employees will look at the tax tickets to try to identify the owner before anyone conducts a full title search. For more information, see Appendix I, The Title Opinion: An Overview.
1 Roger A. Cunningham et al., The Law of Property: Hornbook Series Student Edition 824 (2d ed. 1993).