the Suspense Statute. This notice should include a description of the conflict and the proposed resolution or that portion of the title opinion that concerns the disputed interest.
the biggest takeaway in this arena is that if you are going to place a party in suspense – and the party can be located after reasonable inquiry – you should provide them with thorough and timely notice of their suspension and instructions on how to cure. Author:
V. Parting Thoughts on POAs
The court left open the question of whether failure to record a power of attorney in the county where the property is located is a dispute of title within the meaning of the Safe Harbor provision of the Suspense Statute. Although we are not aware of any binding authority on point, the North Dakota Title Standards state that a power of attorney must be recorded to establish authority of an attorney-in- fact on behalf of the principal. 18 Therefore, there is some support for the assertion that a missing power of attorney could be a suspendible offense (as long as proper notice is provided to the party in suspense). At the least, failure to record a power of attorney remains a strike against marketable title. Note that missing powers of attorney greater than 20 years old may be cured under the North Dakota Marketable Title Act, 19 or treated as an “ancient document” for evidentiary purposes. 20 In Powell , Statoil had been provided with an unrecorded copy of the Slagle/Powell power of attorney. It remains an open question as to whether this type of “actual notice” might take this somewhat technical title defect outside the protection of the Safe Harbor provision. Perhaps
Brad Gibbs Partner, Houston bgibbs@oglawyers.com Edited by Brad McCamy www.oglawyers.com
The content of this publication and any attachments are not intended to be and should not be relied upon as legal advice or to create a lawyer-client relationship. © 2024 Oliva Gibbs LLP. All rights reserved. This publication may qualify as “Attorney Advertising” requiring notice in some jurisdictions. Houston (principal office): 815 Walker St., Suite 1140, Houston, Texas 77002 | Columbus: 580 North Fourth Street, Suite 260, Columbus Ohio 43215 | Lafayette: 4906 Ambassador Caffery Parkway, Building K, Lafayette, LA 70508 | Oklahoma City: 301 Lilac Drive, Suite 250, Edmond, OK 73034 | [18] N.D. Tit. Stand. § 2-11; see generally N.D. Cent. Code § 35-03-03. [19] N.D. Cent. Code Ch. 47-19.1. [20] N.D.R.Ev. 803(16).
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G rowth T hrough E ducat i on - J anuary / F ebruary / M arch 2024
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