APPENDIX TO CHAPTER 43-30STATE BAR OF SOUTH DAKOTA2002 TITLE STANDARDS

IntroductionCitationSectionA-01. Examining attorney's attitude.A-02. Abstracter's certificate, liability on.A-03. Recertification.1-01. Tribal lands.2-01. Contracts for deed--deed to vendee.2-02. Contract for deed-merger.2-03. Contract for deed--conveyances of interests.2-04. Contract for deed--transfers by vendor.2-05. Contract for deed--vendee's interest.2-06. Contract for deed--effect on joint tenancy.2-07. Contract for deed--cancellation.2-08. Contract for deed--deeds held in escrow.3-01. Agricultural/commercial leases.3-02. Leases-notice of renewal.4-01. Effect of judgment on joint tenancy property.4-02. Conveyances to two or more individuals--inclusion of business name.4-03. Homestead rights--effect of partnership on.4-04. Conveyances by partnership.4-05. Conveyances to and by partners.4-06. Conveyances by partnership--when proof of authority not required.4-07. Conveyances of partnership interest after death of partner.4-08. Partnership--effect of dissolution or cessation of business.4-09. Partnership--effect of judgments.4-10. Deed divests present title of all grantors.4-11. Partnership--duration presumed.5-01. Affidavit of marital status.5-02. Indication of marital status.5-03. Recitation of marital status.5-04. Failure to include marital status.5-05. Recitals of record.5-06. Execution by spouse under power of attorney.5-07. Deed of homestead.5-08. Rule of idem sonans.5-09. Use or nonuse of middle names or initials.5-10. Abbreviations.5-11. Name variations.5-12. Effect of prefix, suffix and descriptio personae.5-13. Statement indicating identity.

INTRODUCTION

The State Bar of South Dakota Title Standards are the work of the Real Property, Probate and Trust Section's Title Standards Committee. The Standards themselves are not the authority. Rather, they are in some sense a restatement of the law designed to aid the practitioner in determining the current status of practice in a particular area.The Standards are based on existing South Dakota statutes and case law from South Dakota's courts and other relevant jurisdictions. The committee members' experience with the relevant authorities is crucial to drafting Standards.The 2002 Standards are in part based on the Model Title Standards, existing South Dakota Title Standards and various Title Standards from other jurisdictions, predominantly North Dakota and Nebraska. The Title Standards Committee has discovered that to be most useful the Title Standards must keep pace with the ever-evolving landscape of the law. The ideal way to achieve this goal is through a standing Title Standards Committee charged with an on-going review of statutory and case law whose members are familiar with the dynamics of practice, enabling them to draft and revise Standards as necessary.

CITATION

These Title Standards may be cited as 2002 South Dakota Title Standards referencing the appropriate Standard number. The citation may be abbreviated 2002 SDTS.A-01. Examining attorney's attitudeThe purpose of the examination of title and of objections, if any, shall be to secure for the examiner's client a title which is in fact marketable and which is shown by the record to be marketable, subject to no other encumbrances than those expressly provided for by the client's contract. Objections and requirements should be made only when the irregularities or defects reasonably can be expected to expose the purchaser or lender to the hazard of adverse claims or litigation.When an examiner finds a situation which he believes creates a questions as to marketable title and has knowledge that another attorney handled the questionable proceeding or has passed the title as marketable, the examining attorney before writing an opinion, should communicate, if feasible, with the other attorney and afford an opportunity for discussion.A-02. Abstracter's certificate, liability onUnder SDCL 36-13-15, the conditions of an abstracter's bond are for the payment by such abstracter of all damages which may be sustained by or accrue to any person (whether the original purchaser, owner or holder of the abstract) by reason of error deficiency, mistake in any abstract or certificate of title. In view of this statutory provision, such certificate may be construed as extending the protection and liability to the public generally.A-03. RecertificationThe examiner should accept, without recertification, prior entries in an abstract of title, provided the same were previously certified to by a qualified abstracter.1-01. Tribal landsAny transaction affecting Indian trust land is subject to the approval of the Secretary of the Interior, or as otherwise prescribed by federal statute, and any transaction affecting Indian tribal land is subject to the consent of the tribe, or as otherwise provided by the tribe's constitution and federal statute.2-01. Contracts for deed--deed to vendeeWhere there is a contract for deed in favor of A and later a deed is given to A and another party or parties, a title examiner should treat the deed as creating the estate as indicated in the deed.2-02. Contract for deed--mergerA deed executed in pursuance of a contract for deed supersedes and merges all prior negotiations or contracts relating to it, provided there is no fraud or mistake or collateral contractual provisions or agreements which are not intended to be merged in the deed.2-03. Contract for deed--conveyances of interestsThe vendor and vendee under an executory contract for deed each have an interest in the real property which is capable of conveyance, and transfers of any interest must meet the statutory requisites, including words of conveyance.2-04. Contract for deed--transfers by vendorA transfer by a vendor of an interest in the real property subject to a contract for deed creates an interest in the real estate in the vendee. If the transfer is in the form of a deed to the real estate, no further conveyance from the vendor is required to complete the chain of title.2-05. Contract for deed--vendee's interestA vendee's interest in the real property subject to a contract for deed is an interest to which a judgment lien will attach by operation of law before fee title is conveyed to the vendee. The interest may be mortgaged or levied upon.2-06. Contract for deed--effect on joint tenancyA contract for deed for the sale of real property held in joint tenancy does not have the effect of dissolving the joint tenancy relationship of the vendors if the contract for deed is executed by all the joint tenants, unless otherwise specifically provided in the instrument.2-07. Contract for deed--cancellationWhen the record shows that a contract for deed has been cancelled by action, a title examiner need only require the recording of a certified copy of the judgment, which includes reference to the date the redemption period, if any, expires, and the recording of an affidavit or other document establishing non-redemption.2-08. Contract for deed--deeds held in escrowA deed in performance of a contract for deed which has been executed and held in escrow pending performance of the contract, has been conditionally delivered to the grantee and, upon recording, is deemed effective as of the date of its execution.3-01. Agricultural/commercial leasesNo lease of agricultural land for longer period than twenty years is valid, and no lease of any town or city lot for a longer period than ninety-nine years is valid.3-02. Leases--notice of renewalIn the absence of notice of renewal from possession, record, or otherwise, a title examiner may disregard a recorded lease when the term as expressed in said lease has expired. However, reference shall be made to the lease when its continuation or renewal is dependent upon a contingency that may have occurred, such as production on lands covered by an oil, gas or mineral lease.4-01. Effect of judgment on joint tenancy propertyThe mere docketing of a judgment resulting in a judgment lien on the joint tenancy property of a debtor does not alone sever the joint tenancy.4-02. Conveyances to two or more individuals--inclusion of business nameProperty is acquired in the name of the partnership by a transfer to one or more partners in their capacity as partners in the partnership, if the name of the partnership is indicated in the instrument transferring title.4-03. Homestead rights--effect of partnership onHomestead rights do not attach to the interests of a married partner in specific partnership property. A title examiner need not require any evidence of release, waiver or nonexistence of the marital rights of a partner's spouse.4-04. Conveyances by partnershipA conveyance of property held in the partnership name made and signed by the individual partners and not in the partnership name conveys equitable title only and a new conveyance in the partnership name must be obtained.4-05. Conveyances to and by partnersAny estate in real property may be acquired in the partnership name. Subject to a recorded statement of partnership authority, title so acquired can be conveyed only by an instrument executed in the partnership name by one or more partners of the partnership.4-06. Conveyances by partnership--when proof of authority not requiredIn the absence of knowledge or notification to the contrary, no affirmative proof of authority need be required of a general partner apparently carrying on in the ordinary course the partnership business or business of the kind carried on by the partnership.4-07. Conveyances of partnership interest after death of partnerAfter the death of a partner, the surviving partner or partners may convey real property owned by the partnership. After the death of the last surviving partner, the personal representative of the last surviving partner may convey the partnership property provided such conveyance is for partnership purpose.4-08. Partnership--effect of dissolution or cessation of businessAbsent a winding up of the partnership, dissolution or cessation of business as a partnership does not change the status of partnership property as an asset of the partnership.4-09. Partnership--effect of judgmentsA judgment against a partner does not constitute a lien on specific real property owned by the partnership.4-10. Deed divests present title of all grantorsA deed in which all parties to the title join conveys and releases all title presently held by the grantors regardless of the nature or character of the interest or interests held by or vested in such grantors. Accordingly, for example, it is unnecessary to refer to the grantors as "joint tenants" if they happen to be such.4-11. Partnership--duration presumedA title examiner may presume that a partnership continues in existence in the absence of actual knowledge of the dissolution of the partnership.5-01. Affidavit of marital statusRecitals as to the marital status of parties to the instrument, or as to the homestead status of the property, or as to the identity of parties named in instruments in the chain of title, in any conveyance or other instrument affecting title to real estate in this state, which has been, or hereafter shall be, recorded in the office of the register of deeds for the county in which the land is situated, or the record of the instrument, or a certified copy of the record, shall be prima facie evidence of the truth of such recitals.When a conveyance has been recorded and no spouse has joined therein, evidence should be required that the grantor was unmarried at the time of the execution of the conveyance or if married, that the premises conveyed did not constitute the grantor's homestead and that neither the grantor nor any member of the grantor's family reside thereon should be considered sufficientevidence.The evidence may consist of an affidavit by any person, including the grantor or grantee or an affidavit pursuant to the Marketable Record Title Act, SDCL Ch. 43-30.5-02. Indication of marital statusA recital in the body of a deed or in a certificate of acknowledgement, or both, that the grantor is single, a widow, a widower, unmarried or divorced, or that the grantors are husband and wife, may be relied upon as a sufficient indication of marital status without inquiry or further notice.5-03. Recitation of marital statusIf a deed fails to recite the marital status of the grantor or if a married grantor's spouse fails to join in the conveyance, then the deed is defective unless it is possible to determine from the record that the property is not the homestead of the grantor.5-04. Failure to include marital statusIf the description of the marital status of the grantor has been omitted from either the body of the instrument or the certificate of acknowledgment and if the instrument has existed of record for more than twenty years with no action commenced, then it is not necessary to correct the record in order to make the title marketable.5-05. Recitals of recordEmployment of factual recitals in conveyance is sound, liberal practice. In the absence of special circumstances creating suspicion, adequate recitals should be accepted and relied upon, for example, in overcoming an error in the given name, names or initials or a minor error in the surname of the person, as the same appears in a prior instrument.5-06. Execution by spouse under power of attorneyA conveyance of homestead property executed by one spouse, individually, and as attorney-in-fact for the other spouse is sufficient if the power of attorney specifically authorizes conveyance of homestead property.A conveyance of homestead property executed by a non-spousal attorney in fact for one or both spouses is sufficient.5-07. Deed of homesteadA conveyance or encumbrance of a homestead by its owner, if married and both husband and wife are residents of this state, is valid if both husband and wife concur in and sign or execute such conveyance or encumbrance either by joint instrument or by separate instruments.5-08. Rule of idem sonansDifferently spelled names are presumed to be the same when they sound alike or when their words cannot be distinguished easily or when common usage by corruption or abbreviation has made their pronunciation identical. This rule should be liberally applied.5-09. Use or nonuse of middle names or initialsThe use in one instrument and nonuse in another of a middle name or initial ordinarily does not create a question of identity affecting title, unless the examiner is otherwise put on inquiry.5-10. Abbreviations

(Current through 2019 Session Laws, Executive Order 19-1 and Supreme Court Rule 19-15.)