Thomas, David A --- "Accessing US Land Title Records Through the Internet: A Paper Prepared for the 1st AUSTLII Conference on Computerisation of Law via the Internet" [1997] MurdochUeJlLaw 11; (1997) 4(2) Murdoch University Electronic Journal of Law

Many governmental agencies are going online and permit remote access to electronic data and public records. One of the primary purposes of using computers to do research is the ability to access information from your office or home computer without having to physically go visit the documents. From the information provider’s perspective, making public record information available through computers saves time, expense and resources because people can get the information without actually visiting the office. [12]

The amounts and varieties of governmental information now online are enormous and increasing with astonishing swiftness [13]. Of keen interest to U.S. lawyers are the initiatives in electronic filing. Effective January 1, 1997, the Florida state Supreme Court will allow a court document to be filed by electronic submission, provided that the court or clerk has the ability to accept such documents and the filer has obtained approval from the state supreme court. An original paper copy must be filed in the court records within 10 days after the document was electronically transmitted [14].

Curiously, searching or transmitting land transaction instruments to county recorders’ offices in the U.S. is not one of the numerous government services or databases listed in the literature or anticipated by the authors trying to describe the future of online services in the U.S. [15]. Nevertheless, once a county has committed its land title records (or at least the most recent of them) to electronic form and retrieval, the next step to online and then to Internet access seems both natural and easy.

The simplest method for a rather small governmental unit, such as a county within a U.S. state, to facilitate access to land title records through the Internet is to create a link to an already existing state information system. Quite likely a home page for each county already exists in such an information system and use of this statewide facility may even be cost-free for the county. Expenses for the county will consist of creating its own home page and links and protocols, in addition to the costs of keeping its information up to date.

A governmental unit such as a county which intends to provide Internet access to land title records must confront some early policy decisions about how far to go with information service. From the citizen’s point of view, a county should provide access to its entire land records management system, which gives transactional information, tax assessments, parcel identifiers, addresses, survey descriptions, and the ability to trace backward to earlier links in the chain of title. In addition, the county data should include the county’s geographical information system (also computerised), giving access to plats and other survey information, high level—or aerial—mapping and imaging, overlays for special districts and zones, and a street index, all integrated with the land records management system.

For the future, a county recorder’s office could rather easily progress to electronic document submission, including electronic notarial acknowledgments, necessary to qualify a document for recording.

With such a system in place, the public authorities would then need to address several policy questions:

Access and Privacy

Land title records in the U.S., and the associated geographical and survey information, are public records, open to any person for physical inspection on site during regular business hours. This access is provided free of charge, and copies of any documents are available for nominal fees. In those counties where land title records are computerized, the recorder’s office provides computer terminals at several public workstations where users may search, retrieve and print copies with or without staff assistance. Presumably, none of this need change with the introduction of Internet access. Users who print copies of documents may do so without charge, but if they want document copies authenticated, they will still need to obtain those authenticated documents at the recorder’s office.

In practice, a county that introduces Internet access to its land title records will probably not move immediately to full public access. Most likely, and sensibly, a county will provide a web site and give out the web site address only by subscriptions and only to the title insurance companies, abstracters, appraisers, realtors, tax consultants and others who have a continuing professional need to know that information. Once the county officials have demonstrated that they can provide this subscription without difficulty, they could then post the web site address on the county home page, inviting full public access. However, there appears no need to be concerned about too many simultaneous users.

This access is for read only (and printing out what appears on the screen). It is extremely important that data entry and alteration be left strictly in the hands of the county recorder officials.

Theoretically, the privacy issue has become moot, because any person may physically search the land title records in a county recorder’s office and have access to the entire body of information kept there. The main privacy concern raised by Internet access is simply that the audience to whom access to that information is made available is so much larger, and the ease of access is so much greater. So, while I live with the realisation that the mortgage information on my dwelling is fully available to the public, I am somewhat comforted by the knowledge that few will bother to look it up. This comfort may disappear with the advent of Internet access, since even idle curiosity may be so easily satisfied.

Security

Where concern about user misconduct exists, access to the data may be password protected and constantly screened against introduction of viruses. Nevertheless, the possibility persists that from the privacy of their own computers malicious hackers could eventually succeed in entering and wreaking havoc in these extremely important and sensitive databases. Frequent backups and diligent detection efforts must be in place to guard against such damage. Perhaps it would be necessary to ensure that the archival data base not be exposed at all to Internet access, which instead will be linked only to an updated duplicate.

Liability for errors in the record

In present manual and computerised land title record systems in the U.S., the issue of whether liability can be imposed on the county when County recorder’s office personnel make errors in entering or indexing instruments has been frequently litigated. Most cases result in no liability for the government entity or officials, and that situation would probably not change after Internet access is introduced [16].

Governance

In all U.S. states the county recorder is charged by state statute with the responsibility for creating and maintaining the land title records and associated indexes. These governance responsibilities will not change with the introduction of Internet access, but possibly some technical amendments in the authorising statutes will be necessary. In particular, state legislators may wish to establish standards for currency in light of enhanced technical capabilities, and perhaps even to impose standards that are uniform throughout the state. And even though the county officials in the U.S. are free to move into new advancements, such as Internet access, on their own and at their own pace, again state legislators may wish to authorize and mandate all counties in the state to go forward at some uniform pace, perhaps on a facilitating network provided by the state. This would be especially true if electronic acknowledgments and electronic filing are encouraged and require changes in the state statutes that set out standards for a document to qualify for recording.

Conclusion

Maintaining and indexing land title records in the United States are responsibilities given to the county recorders in the counties in each state, with some standards and procedures set out in state statutes. Even though operating under state authority, county recorders are usually free to carry out their duties in their own way, and introduce new technology at their own pace. More and more county recorders have introduced computerisation of their land title records and associated geographical information systems and are providing terminals and workstations for professional land title searchers as well as for members of the public who use those records at the county offices. It is but a short step forward to introduce Internet access to those records, usually through a link on an already established home page provided by the state or the county. This change has just barely begun, and officials are moving cautiously so they can deal with all the issues raised by expanded access to these very important data bases, but there seems to be no real obstacle to vastly expanded Internet access to land title records in the near future.

Notes

[1] William Walter Hening, The Statutes at Large, Being a Collection of All the Laws of Virginia 227-472 (1832).

[2] Rufford G. Patton and Caroll G. Patton, Land Titles § 6 (1957).

[3] John L. McCormack, Chapter 92, Recording, Registration and Search of Title, 11 David A. Thomas (ed.), Thompson on Real Property, Thomas Edition 82-83(1994--).

[4] 1 Records of the Governor and Company of the Massachusetts Bay in New England 306-307 (Nathaniel Shurtleff, ed., 1853-54).

[5] Laws and Liberties of Massachusetts, 1684, 13-14 (Max Ferrand, ed., 1929).

[6] 27 Henry VIII, c. 16 (1536).

[7] John L. McCormack, Chapter 92, Recording, Registration and Search of Title, 11 David A. Thomas (ed.), Thompson on Real Property, Thomas Edition 829 (1994--).

[8] Id. at 79.

[9] Tract indexes are reportedly used in about one-third of recorders’ offices, but are required in only about 10 of the 50 states. Id. at 93.

[10] John L. McCormack, "Torrens and Recording: Land Title Assurance in the Computer Age", 18 Wm. Mitchell L. Rev. 115 (1992); A. G. Lang, "Computerised Land Title and Land Information", 10 Monash U. L. Rev. 196, 197 (1984).

[11] Internet Week, Monday, November 25, 1996.

[12] Linda S. Brehmer and Ernest A. Cox, Making the Internet Useful, ALI-ABA Course of Study SB48 129, 131 (January 9, 1997).

[13] See Max Lent, Government Online (New York: Harper Perennial, 1995); John Maxymuk (ed.), Finding Government Information on the Internet (New York: Neal-Schuman Publishers, Inc., 1995).

[14] Rule 2.090 (Electronic Transmission and Filing of Documents), Florida Rules of Judicial Administration, reported in 681 So. 2d 698 (Fla. 1996); John Gibeaut, "Sign on the Dotted Screen: ABA takes lead in developing guidelines for electronic document verification", 83 ABA Journal 100 (May, 1997).

[15] See, e.g., Richard D. Marks, "Current High Technology and Information Infrastructure Initiatives", 34 Jurimetrics Journal 117 (Fall, 1993).

[16] Siefkes v. Waterton Title Co., 437 N.W.2d 190 (S.D. 1989) (county recorder protected from liability under the doctrine of governmental immunity); Paul E. Basye, "A Uniform Land Parcel Identifier—Its Potential for All Our Land Records", 22 American U. L. Rev. 251 (1973) ("In the absence of specific statutory provisions to the contrary, the recorder has traditionally been protected by a shield of governmental immunity. Most states provide some liability [coverage], but the scope of liability [coverage] is usually below that of a common law action grounded in negligence"; recovery on a recorder’s bond may be permitted, but bonding limits may be inadequate to cover the claim.).