As title professionals, we review lots of documents. Documents and their impact are what we insure. They allow us to assess risk appropriately, determine where land is located, indicate who owns the land and identify what liens may affect that land. Document review of land records answers our questions – well, maybe not all of them – but it gives us lots of documents to review. And with all the documents we need to review, the issue of redaction in land records is of critical importance to title professionals. If we don’t know the location of the land, how do we know the party at the table is vested with title and the corresponding ability to convey?
Redaction in land records refers to the removal of a portion of the relevant record recorded with the registrar or recorder’s office. For example, in the context of a sale transaction, a legal description or property address may need to be removed from the public records as it pertains to the deed of a seller who is eligible for statutory-directed redaction. Similarly, an individual who is buying property in a state with a redaction statute affecting land records may have their name and property address redacted from both the mortgage and deed.
There are many reasons why statutes are passed supporting redaction in land records, the most significant being protection and safety of the people who protect and serve us. Examples of these parties include judges, police officers and legislators.
Local clerk and recorder offices must determine how to redact relevant records effectively, compliantly and appropriately. The implementation of redaction statutes differs based on state statutes. Questions may arise as to whether the clerk or registrar should redact, what exactly the process entails, how the redaction is implemented and permissions to see unredacted documents. As title professionals, we may wonder how we will know if someone falls under one of these protected parties, and ultimately, what responsibility we have.
In Florida, for example, the legislature passed F.S. 119.071(4)(d), a statute that provides for redaction of specific information when requested by individuals who are protected under the statute. This statute “allows for the exemption of personal identifying information of individuals whose duties or occupations place them into close contact with individuals who may be a threat to them and potentially subject them to harassment, threats, or other harms. Additionally, the statute allows for the exemption of the personal identifying information of individuals who are victims of specified violent crimes” (Office of Program Policy Analysis and Government Accountability Report, December 2020, Page 2). Under the Florida statute, there is no renewal requirement placed upon the requesting individual, and this redaction does apply to property records. The clerks are responsible for redacting the information upon request from an eligible individual.
If this is starting to sound familiar, you may recall headlines about recent events in New Jersey that led to the creation of a statute called “Daniel’s Law.” The new law was named in honor of Daniel Anderl, the late son of U.S. District Court Judge Esther Salas. Daniel fell victim to an act of gun violence committed by an individual who had compiled a dossier of personal information about Judge Salas, including the judge’s home address.
Originally enacted under New Jersey Assembly Bill No. 1649, the bill amends the Open Public Records Act (OPRA) to exclude from the definition of a government (i.e., public) record the portion of any document which discloses the home address of any active or retired judge, prosecutor or law enforcement officer. Further, the bill prohibits government agencies, individuals and businesses from knowingly publishing on the internet (or otherwise making available) the home address or unpublished home telephone number of any active or retired judge, or any active or retired prosecutor. Doing so could make one liable for civil or criminal action under the new law. Daniel’s Law was signed November 20, 2020, and became effective immediately, with enforcement held until December 10, 2021.
On January 12, 2022, Assembly Bill No. 6171 passed. This bill provides for the “Office of Information Privacy” within the Department of Community Affairs, which could help facilitate the implementation of the new law. The bill provides that through this distinct office, “The director shall establish: (1) a secure portal through which an authorized person may submit or revoke a request for the redaction or nondisclosure of a covered person’s home address from certain public records and Internet postings.” The Office of Information Privacy launched a portal online on July 12, 2022 “for all authorized public officials and public agencies to apply to have specific personal information redacted from certain records and internet postings.”
If you are handling a refinance or sale transaction and the current owner’s information, such as property description, is redacted from the land records, the transaction may require additional due diligence on your end. In order to insure without exception for what you can’t see, some possible solutions may include:
If you find yourself in this situation, please contact your Doma underwriting counsel at [state][email protected] for further guidance.
Title professionals know how important complete and accurate land records are, and the issue of redaction is important to us; our job is to review title evidence such as the property location, the identity of the property owner and all liens that attach. Unfortunately, this information may overlap with redacted information in the records. Moving forward, redaction of those records will most likely continue, and like we always have, we will adjust. The most important aspect is the safety and support of those who protect us all.
“The most important part of this rapid response plan is the word rapid,” Schreiber said. “You have a limited window to recover the funds. Fraudsters are not going to leave the funds in the bank where you wired them to, which makes recovery all the more difficult. In most instances, the money is unrecoverable within a matter of hours, or at most, two or three days.”
Sara G. Valenz is Vice President, Deputy Chief Underwriting Counsel at Doma Title Insurance, Inc.