Uniform Law Commission RPTE Projects

By: Benjamin Orzeske, Esq.1

Spring 2023 Update

The following Uniform Law Commission projects may be of interest to members of the ABA Section on Real Property, Trust and Estate Law.

Drafting Committees:

Tenancy-in-Common Ownership Default Rules. The committee has drafted an act to help alleviate the gridlock that can result from the common-law rule requiring unanimity among cotenants for property management decisions. The committee attempted to balance the protection of individual property rights with the need to make management decisions more efficiently, including the possibility of binding unknown or unlocatable owners when necessary. The act would preserve the cotenants’ right to agree to alternative terms in a cotenancy agreement. The Uniform Law Commissioners will vote on whether to approve the final draft act in July 2023.

Restrictive Covenants in Deeds. This drafting committee will draft a new uniform law governing the removal of discriminatory restrictive covenants from recorded property records. Many older deeds contain restrictions based on unconstitutional grounds. Though these discriminatory restrictions are unenforceable, some property owners want the offensive provisions expunged from their chain of title. States have begun to accommodate those requests, but without a consistent process. The American Land Title Association proposed this project to provide a standard process for removal of discriminatory restrictions while preserving the historical record and ensuring the integrity of a property’s title. The Uniform Law Commissioners will vote whether to approve the final draft act in July 2023.

Mortgage Modifications. A drafting committee on mortgage modifications is attempting to draft an act to standardize state laws that govern recording requirements in response to modification of a mortgage agreement. The act will also clarify when a modified mortgage retains its priority over subsequent creditors to secure repayment of the debt. This new act will not be approved before summer 2024.

Study Committees:

Redaction of Personal Information from Public Records. In 2020, a New Jersey federal judge’s husband and son were shot at their front door by a disgruntled former litigant who targeted the judge’s family by getting her home address from public records. In the wake of this horrific act of violence, states are beginning to pass legislation allowing the redaction of personal information of judges and other public officials from public records. However, there is no consistent approach. A committee on redaction of personal information from public records is studying whether a uniform or model act on the subject is feasible, and the scope of any potential drafting project.

Revisions to the Model Marketable Title Act. This committee is studying the need for and feasibility of updates to the Model Marketable Title Act. The Model Act, which was derived from Article 3 of the Uniform Simplification of Land Transfers Act, was originally promulgated in 1990 and enacted in one state before being withdrawn as obsolete in 2015. However, about 20 states currently have non-uniform marketable title statutes, with widely varying look-back periods and exceptions. The committee will determine whether a more uniform approach would be beneficial and feasible.

Use of Tokens or Other Similar Products in Real Property

Transactions. This committee is studying the need for and feasibility of a uniform or model act addressing issues related to the use of blockchain-based non-fungible tokens (or other similar products) to modernize and simplify the transfer and financing of real property.

Use of Tenant Information in Rental Decisions. This committee will study the need for and feasibility of a uniform or model law addressing landlords’ use of tenant screening reports in rental decisions. Such reports may give landlords outdated, inaccurate, or incomplete information about prospective tenants’ involvement in prior litigation (e.g., if the report states that the tenant was a party to litigation with a previous landlord but does not disclose that the tenant was the prevailing party). In particular, the committee will focus on identifying how widespread any problems may be and whether any act should be directed primarily at commercial providers of screening reports.

The RPTE Section appoints at least one Advisor to each uniform law commission project involving the law of real property, trusts and estates. All uniform law drafting committees are open to any interested observer and members of the RPTE Section are encouraged to join and contribute their relevant expertise. Visit www.uniformlaws.org to find more information on these committees and on other ULC projects.

Endnotes

1. Ben is Chief Counsel at the Uniform Law Commission. He supervises a staff of legislative attorneys who work to enact uniform laws in all fifty United States, the District of Columbia, Puerto Rico, and the U.S. Virgin Islands. Ben provides legislative support for the Uniform Commercial Code and for uniform laws in the areas of real property, trusts and estates, investment management, and elder law. He also serves as the ULC’s internal Legal Counsel.

eReport 2023 Spring