Fidelity National Title Group Issues Public Comment on BIA Proposed Rule

WASHINGTON, Feb. 18 -- The Fidelity National Title Group, Jacksonville, Florida, has issued a public comment on the Bureau of Indian Affairs proposed rule entitled "Indian Land Title and Records". The comment was posted on Feb. 17, 2021:

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Proposed Revisions to 25 CFR Part 150 - Fidelity National Title Group Comments

Section 150.2 What terms do I need to know?

1. We request deleting the phrase "or in Federal law" from the definition of Indian Land. We consider 25 USC 177 to be a restriction on conveyance of fee land under Federal law, we are concerned the LTRO could take the position that it can record documents affecting fee land and that would provide constructive notice of them to the public at large.

Section 150.101 What is the purpose of the record of title?

1. Since this section states that the record of title provides the public with constructive notice that title documents exist, we ask that the Rules allow the title insurance industry access to the title documents. This access would support tribal development, housing, etc. through our insurance products. In many cases, a lack of access to the title documents hinders our ability to offer title insurance for property in Indian Country which impacts the ability to secure financing for this type of development.

2. Please explain how constructive notice works in the context of the LTRO? Does recording preempt the race, notice or race-notice rules of the state? Does the recording of a title document in the LTRO give that document priority over interests that were recorded later, or does prior actual notice of the real property interest impact priority?

Section 150.103 What services does the LTRO perform to maintain the record of title?

1. In sub-section (d), please include uncertified TSRs in addition to certified TSRs to be consistent with the language in section 150.302(b).

2. We request that a specific time frame within which TSRs should be issued be added.

Section 150.104 How does the LTRO maintain the record of title?

1. Please confirm whether the LTRO is digitizing all documents received at this time.

Section 150.105 Are certain LTRO offices responsible for certain geographic areas?

1. If recordings are shifted to an LTRO outside of that LTRO's assigned geographic area as needed, please explain the process for ensuring the documents are timely and correctly transmitted? What is the process for ensuring that a certified TSR represents a summary of all documents recorded in an LTRO regardless of location?

2. How will the shift impact recording?

3. Will there be a tracking option to determine where submitted documents are?

Section 150.201 What is recorded in the record of title?

1. As used in 150.201(c) (1), which Tribes are the "certain" Tribes referenced in this section?

2. If a document is recorded on non-Indian land, that document is also required to be recorded in accordance with applicable state law. Consideration should be given to some kind of global statement confirming that nothing prohibits recording in county records with consent of a Tribe, tribal entity or tribal member.

Section 150.203 Who may submit a title document for recording?

1. Please include a required time frame for recording upon submission.

Section 150.205 What are the minimum requirements for recording a title document?

1. Section (a)(3) calls for "proper notarization or other acknowledgement of the signatures of the parties." Is this pursuant to state law? If so, please clarify. Does this include remote on-line notarization laws?

2. Please specify in sections (a)(1) and (b)(1) when the tract number is required.

Section 150.206 What actions will the LTRO take if it discovers a title defect?

1. In section (b) there is no process to notify the parties to the document, or the party that submitted the documents for recording, that a correction is needed. Please address how a party to or a submitter of a document is notified that a document is in need of correction. Please also include the constructive notice effect of the recording of a document that needs correction and of the corrected document, (for example, does the corrected document relate back to the date the incorrect document was recorded?).

2. Regarding section (c), when the LTRO discovers a title defect during a title examination, will the LTRO notify the originating office of the defect, request correction, and make a notation in the record of title. Will the document still be disclosed on a TSR?

Section 150.303 Who may request and receive copies of title documents in the record of title or reports from the LTRO without filing a Freedom of Information Act request?

1. As stated in our comments to section 150.101, we request that title insurance companies be authorized to request TSRs and other title documents in order to issue title policies and thus support development and financing of real property in Indian Country. The current process often results in delays that can negatively affect completing transactions within the time frames that lenders and others may require.

2. We request that a title company may fulfill the role of legally authorized representative in sections (a) and (c).

3. Please be precise regarding forms needed to authorize access to title documents. Can everything be requested and delivered electronically?

Section 150.305 What information must I provide when requesting copies of title documents and reports?

1. Please see our comments to Section 150.303 above.

Section 150.402 How must records associated with this part be preserved?

1. Please address here or in a newly numbered section what happens to the title documents after the property falls out of trust or restricted status, the effect of these on the title to the property, and how these documents may be accessed.

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The proposed rule can be viewed at: https://www.regulations.gov/document/BIA-2020-0008-0001

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