Greetings ILTA members!
My term as president couldn’t have started off better. The Pacific Northwest Land Title Associa-tion convention was a great success. These events are challenging to organize and run. Thank you to John Holt and Daryl Olsen who masterfully lead the charge for the event. Thank you to everyone else who helped and attended!
On behalf of the Board and ILTA I want to give another special thank you to Steve Day, Fidelity, NTP & ALTA President for his support and presentation of The Path Forward: ALTA’s Strategic Priorities to Advance the Industry.
I’m fortunate to follow a strong group of leaders and I look forward to carrying on their work with the Association. Our past President, Daryl Olsen, has left big shoes to fill.
Thank you, Daryl, for all the great work this past year. Your leadership through a busy and some-times complicated times was very organized and unwavering. For me, the advancement of the educational programs, especially the regional education classes, stand out as highlights of your tenure. All should know that Daryl has agreed to continue his work as Chairman of the Educa-tion Committee. So, some special thanks for that continued commitment.
The next year will be like the last in terms of priorities and agenda. Furthering the escrow and title profession through enhanced education programs and furthering our legislative agenda. All mem-ber should look forward to discussions on the legislative agenda. We will be engaging in some negotiated rule making over the next year. The scope is to be determined. Any changes will be in rule form by August of 2019 and before the legislature in 2020.
We will be starting with a consolidation of the rules. They will be consolidated from 4 to 2 rules with market conduct and operations more segregated in two sections. Beyond that, the Associa-tion and DOI will work together to determine the breadth of changes. Of course, the current political climate is to reduce regulation wherever possible. That path will be followed to the ex-tent we can reduce while preserving integrity of our industry. The Legislative Committee has had some preliminary meetings on the subject. Again, look forward to more discussion on this matter.
Finally, as my pet project during my presidency, I want to refresh the mission of the Association. Currently the mission of the Association is stated as follows:
The objectives and purposes of this Association shall be the advancement of the science of evidencing title to real property; the promotion of the mutual advantage and general welfare of its members by the interchange of ideas and by protective, remedial or other measures to further the common interest of its members and the general public, in har-mony with their respective rights, interests and duties. And in general, to do any and all things that may be incidental to, implied from or appropriate to the promotion and en-couragement of these objects and purposes.
A fine sentiment, but it seems a little out of touch with our current business. I look forward to working with the Board and membership on this project.
The only constant in our industry is “change.” It’s going to be a great year and I look forward to meeting the challenges with everyone.
2018 ILTA Annual Business Meeting Minutes and Committee Reports
Financial summary reviewed and approved.
The Business meeting commenced with committee reports and discussion.
Liaison Committee – John reported a summary of the year’s meetings.
1. Legislation is a regular item on the agenda. This past year the issues have included;
a. The cancellation fee amendment to the rules and statutes
b. The flat fee clarification bill
c. The HOA fee legislation where we supported the realtors and lenders
d. The employee reimbursement legislation to clarify to include closing fees
e. Remote Notary and ongoing progress with other states was discussed
f. Earnest money instruction was discussed
g. A single flat fee recording charge proposed by Ada County was discussed
2. E- closings
3. Block chain
4. Mobile notaries were discussed – these seem to be vetted and directed by national lenders
5. Deviated rate schemes were discussed and DOI confirmed were prohibited
6. DOI talked about numerous products and entities that are unlicensed or seemingly so
7. DOI discussed a new online license renewal and application they are implementing
8. DOI discussed a possible concept to have underwriters do title and market conduct audits. Any proposal would need to be reviewed with underwriters and then proposed to DOI. There was concern about direct operations and that the DOI retain the market conduct
9. Paul Newton made a presentation about the Utah rules and regulation and processes as a comparison to Idaho’s
10. Education opportunities were increased with regional trainings in Pocatello and Coeur d’ Alene
11. The annual Ed seminar in March included more core title and escrow topics
12. The ITP/NTP programs were discussed as designations to increase the professionalism of the industry and to emphasize the importance of continuing education in the absence of any required individual credits.
Education Committee – Daryl advised that the Board has emphasized education as a means of adding value in membership to the Asso-ciation. Two regional trainings were implemented. October in Pocatello had 50 attendees and January in Coeur d’ Alene had 60. These trainings were well received and will continue. The annual ed seminar in March had 125 attendees and was geared to more core title and escrow topics. The revitalized Legislative Reception continued. Topics and speakers received very favorable reviews.
Judicial Committee – Matt gave a summary of new cases that are reported in depth later in this Newsletter.
Legislative Committee – Cameron and Martin went into more detail about this year’s activity which was very full.
1. Amendment to the flat fee recording was clarified.
2. Legislation to clarify that employee reimbursements can include reimbursement of escrow costs passed.
3. We supported the relators and lenders in addressing the HOA fee legislation that addressed the management companies charging for providing info on dues and fees.
4. We are monitoring a new flat fee recording proposal that will be just one flat fee for all recordings. This is a proposal from Phil McGrane of Ada County. Phil will be on the agenda for the September 20 Liaison meeting.
5. Remote notary bills across the nation have been monitored. This is gaining steam nationally. We are reviewing the ATLA model law in conjunction with the Uniform Law Commission model and plan to be active as the issue looks to be reviewed and possibly addressed in the upcoming legislative session.
6. E-recoding continues to be a struggle to get the final two straggler Counties on board – Nez Perce and Shoshone. It is possible the remote notary bill together with other online services will force the stragglers to get onboard.
7. The Committee is proactively reviewing the four Rules that impact our industry -1, 25, 39 and 56 in conjunction with a DOI push to cut and consolidate rules if to do so makes sense. An operation and marketing rule concept has been dis-cussed. This is a longer-term project over the next two years. It is also possible that this project would be the timing to look at addressing “new” issues such as social media that are presently not addressed in the Rules.
IPAC Committee – Denise and John discussed the success we have had at the 50/50 split the pot raffles at the annual ed semi-nar and Pacific NW Convention as well as the silent auctions at both functions. Dues forms and payroll deductions have also generated donations. The IPAC account has an approximate ongoing buildup to $10,000 and makes annual donations of $6,500-7,000. This is an important part of advocacy and there are many other organizations and businesses that donate more. As information, ALTA has become a major player with its PAC fund.
Nomination Committee – John reported on behalf of JT the nominated slate of officers:
Cameron McFaddan – President
Heather Wichman – VP Panhandle
Jay Williams – VP Southeast
Robin Aberasturi – VP Southwest
John Holt – Secretary/Treasurer
Daryl Olsen – Past President
The slate was unanimously approved by vote at the meeting together with votes submitted on line.
ITP & NTP News
The ITP program and promotion of ALTA’s NTP program have been major goals of the Board to enhance value in membership through education and to recognize the professionalism of our industry. We are proud to announce that Cindy Guanell has been awarded the ITP designation. Please congratulate Cindy the next time you see her.
Cindy is also applying to ALTA for her NTP which would be a great honor and achievement to demonstrate her experience and professionalism in the industry. She will join Daryl Olsen and John Holt as NTP’s from Ida-ho. Check out Daryl’s NTP profile on the following page that was profiled in the latest Title News. There are many others who qualify for ITP and NTP status. Please review the process and qualifications and make application. The Board stands ready to help you through the process as the application can be the most daunting aspect of the process.
Judicial Review Case Summary
by Matt Ryden
The following are summaries of recent Idaho Supreme Court opinions reported to the Board at the ILTA Annual Meeting in Coeur D’Alene on August 2, 2018.
Estate of Smith, 2018 WL 3614783 (Idaho 2018). This opinion examined, among other things, the validity of a gift deed under a Power of Attorney.
Facts: The decedent’s son was an attorney who provided legal services and other assistance to the decedent prior to her death. The son created a power of attorney (“POA”) whereby mom appointed the son as her attorney-in-fact. Acting as attorney-in-fact under the POA, the son prepared and executed instruments whereby: 1) mom and son be-came 50/50 members of an LLC; 2) all of mom’s assets, including real property, were transferred to the LLC; and 3) mom’s membership interest in the LLC was transferred to the son.
Lawsuit: After mom’s death, siblings and other interested parties challenged the transfers of the assets under POA, contending they should be part of mom’s estate. The magistrate court ruled that the transfers under the POA were invalid gifts not authorized by the POA.
Issues on Appeal:
1. Were the transfers “gifts”?
The son contested the lower court’s ruling on the ground that the transfers were not “gifts” because the deeds ex-pressly recited that they were made for “ten dollars and other good, valuable and lawful consideration.” The “other consideration,” according to the son, referred to the professional services he had provided to his mother over the course of several years. The court declared that, ordinarily, an Idaho court will not inquire as to the adequacy of con-sideration that is bargained for under private agreement. However, in this case, the “gross” disparity between the purported consideration and the value of the property transferred mandated the conclusion that the transfers were gifts under Idaho law.
2. Did the Power of Attorney instrument authorize the making of gifts?
The son argued that gift-making was authorized by broad language in the POA, including “unlimited and all inclu-sive…power and authority to manage and conduct all of my affairs.” By contrast, the Court pointed to Idaho Code Sec-tion 15-12-201(1)(b), which requires that certain powers, including “gift-making,” be expressly granted in a power of attorney. Ultimately the Court found that the POA did not authorize gift-making because of its failure to include the “explicit statutory phrase ‘make a gift’.”
Not surprisingly, the gift deeds were uninsured, but the decision serves as a colorful reminder of the dangers of self-serving deeds.
Nielson v. Talbot, 163 Idaho 480 (2018). This decision examined the permanence of a boundary by agreement and a seller’s liability to a buyer when an agreed boundary line prevails over a boundary described in a Warranty Deed.
Facts: The Parkers and the Talbots owned adjacent properties. These neighbors, and their predecessors, treated a row of lilacs, shrubs and plants as the boundary between the properties. After purchasing the Parkers’ property, the Nielsons measured the lot and discovered that the Talbot’s carport, along with the lilacs, shrubs and plants, en-croached on their newly-acquired lot by 13 feet.
Lawsuit: Nielson tore out the lilacs, shrubs and plants, and initiated a quiet title action against the Talbots. Nielson also sued the Parkers for breach of the warranty deed. The District Court found that a boundary by agreement existed and dismissed the Nielsons’ claims against the Talbots. The Court also found that the Nielsons were on notice of the previously-agreed boundary before acquiring the property and, therefore, dismissed their breach of warranty claim against the Parkers.
Issues on Appeal:
1. Does the legal description or agreed the boundary establish the boundary line?
The Court upheld summary judgment in favor of the Talbots regarding the property line dispute. Under existing Idaho law, when a boundary line is agreed upon and marked on the ground, and circumstances demonstrate that purchasers are on notice of that agreement – either directly or through awareness of the boundary line – the purchasers are bound to accept the line as agreed upon and marked. Paurley v. Harris, 75 Idaho 112 (1954); Campbell v. Weisbrod, 73 Idaho 82 (1952).
2. Are the Parkers liable to the Nielsons for the failure of the agreed boundary to coincide with the boundary set forth in the legal description?
The Court reversed the dismissal of the Nielsons’ claims against the Parkers, finding that the Nielsons could recover damages from their seller, despite the fact that their quiet title action against their neighbor was unsuccessful. As sellers of certain legally-described land by Warranty Deed, the Parkers faced liability to the Nielsons for the value of the land within such description that was lost to the Talbots in the boundary dispute. The Court issued a direct warn-ing that:
it is imperative that sellers take adequate measures to ensure the accuracy of the legal description contained in a deed before they sell that property to another.
This opinion, particularly the imposition of liability on sellers for buyer’s losses in boundary disputes, warrants caution and adherence to underwriting requirements, particularly when survey matters coverage is requested.