Oregon Advisory Opinions January 01, 1972: OP 6886

Advisory Opinion Text

DEPATRMENT OF JUSTICE

STATE OFFICE BUILDING

SALEM,OREGON 97310

TELEPHONE:(503)364-2171

January 4, 1972

No. 6886

This opinion is in response to a question presented by Mr. Justin Smith, District Attorney for Jackson County.

QUESTION PRESENTED

Do the provisions of Oregon Laws 1971, ch. 478 (which repealed ORS 94.005 et. seq., relating to the registration of titles to real property under the so-called "Torrens" system) require the County Clerk to record in the county deed records any portion of the files and records involving title to real property for which a Certificate of Withdrawal has not been issued prior to July 1, 1972, under Sec. 5 of the Act?

ANSWER GIVEN

No.

DISCUSSION

By enactment of Oregon Laws 1971, ch. 478, the Oregon Legislature repealed the so-called "Torrens" system of land title registration provided for in ORS 94.005 et seq. The provisions of ch. 478 give a land owner whose title is regis­tered under the Torrens system until July 1, 1972, to obtain a Certificate of Withdrawal under Sec. 5 of the Act and record it along with other instruments on file relating to outstand­ing interests in the property. The purpose of ch. 478 is to discontinue the little-used Torrens system, and to bring all real property title records under the deed recording system.

Some county clerks anticipate that in many instances land titles registered under the Torrens system will not be withdrawn by July 1, 1972, and thus will not be brought under the deed recording system. It is suggested that there will be no official record of title for such property after July 1, 1972, unless documents in the Torrens file which reflect the title and outstanding interests therein which are shown on the unsurrendered certificates, are recorded; and that this impliedly gives rise to a duty in the county clerk to record such documents.

In our opinion, ch. 478 does not create such an obligation. There simply is no provision in the Act providing for it. This does not mean, however, that a landowner who has failed to obtain and record a Certificate of Withdrawal under the Act lacks any public record of his title. While Section 1 of the Act repeals the Torrens system, Section 3 specifically pro­vides that its repeal "does not affect any right accrued or established, or any liability or penalty incurred, under those statutes before their repeal." Thus, although in certain cases landowners may fail to comply with the Act, the efficacy of the old Certificate of Title as a public record continues.

This is further borne out by Section 6 of the Act, which provides:

"On the operative date of this section, the registrar of titles for the county shall cause the volumes of the register of titles for the county and the accompanying alphabetical indices and tract in­dices and other files and records in the office of the registrar of titles to be closed and placed in the permanent deed records of the county."

Thus, the Torrens records will be made a permanent part of the deed records, and while some of the titles covered by it will not be covered by the recording system until the re­cording of some future deed, the old Torrens records will con­tinue to constitute public notice of title and other interests in affected property.

LEE JOHNSON

Attorney General

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