Duhaime's Law Dictionary


Abstract of Title Definition:

A statement of the conveyances and charges appearing of record and affecting the title to real property.

Related Terms: Torrens Land Registration System

In Duncan v Kelley, Justice Maxey of the Supreme Court of Oklahoma wrote:

"An abstract of title is merely a memorandum or a concise statement of the conveyances and incumbrances appearing of record and affecting the title to real property, and its object is to enable the purchaser or his counsel to pass readily uopn the validity of the title in question...."

In law, the abstract of title remains the fundamental statement by the vendor as to his good and sufficient ownership for the purposes of whatever conveyance is being proposed, such as a transfer or a mortgage.

The 2nd Edition of American Jurisprudence, volume 1, defines an abstract of title as follows, and thick in legalese:

"... a written representation, provided pursuant to a contract, whether written or oral, intended to be relied upon by the person who has contracted for the receipt of such representation, listing all recorded conveyances, insruments or documents which, under the laws of the jurisdiction, impart constructive notice with respect to the chain of title to the real property described therein, may be subject."

According to Di Castri:

"[T]the general rule on a contract for the sale of land is that a vendor is bound to deliver an abstract showing good title unless this duty is dispensed with by the contract or by statute, the conduct of the purchaser and the surrounding circumstances may also operate to relieve a vendor of this duty.

"The purpose of an abstract is to show everything necessary for the title which the vendor intends to make to the purchaser...."

"The abstract, when delivered, should contain eveything material concerning the sources and conditions of the title and is sufficient when it shows ex facie such documents and facts which, if respectively produced and proved, can be equated to a marketable title ... (and) verified, when the vendor is ready and has the means in his possession to establish that the abstract is true in all essential particulars."

In Ratto v Rainbow realty, Justice Nathanson of the Nova Scotia Court of Appeal decided to leave behind a juristic legacy, a how-to of abstracts of title in real estate transactions (at ¶75):

"The findings of fact in this decision are based to a substantial extent upon the contents of the agreed abstract of title exhibited in evidence. I found that abstract to be less than perfect. It contains a number of errors, omissions, unsupported opinions and misleading statements. In the hope of ensuring the maintenance of a high standard for abstracts, particularly those which may be submitted to the courts, it might be worthwhile to set down a few guides or hints for solicitors who search titles and prepare abstracts:

(a) It is desirable that an abstract is able to be read and understood by a person who has not searched the title, without reference to any other documents or records. Therefore, it should contain an exact copy or accurate summary of each legal description, at least the first time it appears in the chain of title.

(b) If more than one lot is searched or more than one title is examined, the legal description for each must be clearly numbered or labeled.

(c) Where any portion of a recorded document is quoted, quotation marks should be used.

(d) References to documents not relating to the land under search should be omitted.

(e) Obscure abbreviations should not be used.

(f) An abstract of title constitutes a precis of the relevant contents of recorded documents. Sometimes those contents require clarification. Where law is quoted, its source must be cited. Where opinions or comments are set forth, they must be clearly labeled and distinguished as such.

(g) Every abstract must contain a certificate of title, and all exceptions to good title must be stated explicitly in the certificate."

Bruce Ziff, wrote in Principles of Property Law that the necessity of an abstract of title arose in an era before formal government cataloguing of land titles, when the vendor had to keep with him all historical records related to his/her land sufficient to discredit any claim made by another:

"To alleviate some of the inconvenience that would result, a practice developed of requiring the vendor to prepare an abstract that would outline the interests affecting the title and show a good claim of title, as plotted from an earlier transfer document onward. A period of time was allowed for the purchaser to examine the abstract and raise objections...."

REFERENCES:

  • Di Castri, Victor, The Law of Vendor and Purchaser, Volume 1 (Toronto: Carswell, 2010), page 9-1
  • Duncan v Kelly, 229 P. 424 (1924)
  • Ratto v. Rainbow Realty Ltd., 159 A.P.R. 34
  • Southland Title Corp. v. Superior Court, 231 Cal. App. 3d 530 (1991)
  • Ziff, Bruce, Principles of Property Law, 5th Ed. (Toronto: Carswell/Thomson Reuters Limited, 2011), page 464.

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