Real Property Law: the Necessity of Certainty in Title

For over a year, I have been arguing that Arizona courts should not ignore, trample and mar hundreds of years of real property law and title law.  There is a reason that we have specific rules crafted over many years to provide certainty in the transfer and ownership of real property.  This law should not be skewed or altered just because judges feel it is politically (or socially) expedient to allow easy foreclosures.

As such, I was reading Matt Weidner’s blog and loved this quote by his friend, title attorney Greg Clark, related to a wrong-headed decision by a Florida appellate court:

We in the world of transactional/title law and insurance follow a different tune than the drumbeat of the latest questionable appellate decision. We know that the vast majority of the judges sitting on benches never closed a real estate transaction nor searched and put together a title chain, nor could they spot a cloud or defect. We deal in a delicate and extremely conservative area of the law developed over nearly a 1,000 years of practice, process and tradition; We carry the history and weight of that developed law and its solid logic into the most important aspect of any transaction – the fundamental bedrock assumption underpinning its successful completion: clear and marketable title. Every buyer presumes it.

So we do not accept bad or illogical decisions of courts if it conflicts with our learned perception of the law and acceptance of a risk assessment. We cannot be forced to write title.


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