Body cameras require change in Maryland consent laws.

Body cameras are here. And so Governor Hogan has signed into law a provision that modifies Maryland law governing consent.  Under old law, Maryland was a "two party consent" state. That meant every person involved in a conversation had to consent to recording.

It is a great way to terminate sales calls. When the caller tells you "this call is being recorded for quality assurance," simply respond "but I do not consent."  That will quickly end the call.

But imagine if a beat cop has to ask every citizen or suspect encountered "...you are under arrest...and may I please record your voice?" It is unworkable.

The new law specifically exempts police body camera recordings from the two party consent requirement. 

Delivery means giving up control of the deed.

 Ownership of your home is transferred by a written deed. It is very common to jointly title a home in the name of a husband and wife to keep the house out of probate.  It is easy to write a deed that says "Joe gives this land to Joe and Jenny, as husband and wife," so that the married partners jointly own the home. And when one or the other dies, the survivor gets full ownership of the home, outside of the formal probate process.  In this situation, ownership passes from one spouse to the surviving spouse at the moment of death, with nothing more required--it is automatic. 

     But simply writing and signing the deed is not enough. There is an important step in the process, dating back hundreds of years, that is often forgotten. The Maryland Court of Special Appeals just reaffirmed the historical concept that a deed must be "delivered" in order to effectively transfer title to real property. Without this final step, absolutely no transfer of ownership is accomplished.

     In Daniels v. Daniels, the intermediate appellate court relied on this ancient concept to pull  title to a home away from a surviving wife so that it would be included in the estate of her dead husband. It held that the ownership interest was not "delivered" because the deed remained for six years in a filing cabinet in the couples home. Because the husband who wrote the deed to transfer an interest to his wife had access to the deed, and because he could have destroyed the deed at any time, the court ruled that the deed had not been delivered. The wife knew about the deed, and both understood that the document made them joint owners, but the trial court and appellate courts  both concluded that this simply was not enough.  A fully executed deed that is accepted by the other party is just not enough to transfer ownership unless it is "delivered." And that means giving up any right to get the deed back, or to destroy the deed.

            The method for delivery of ownership has changed a bit since the days of old. Hundreds of years ago, ownership of land was officially delivered through a ceremony often called the “Liveryof Seisin.” In this ceremony the person giving the land would present he person receiving the land with a clump of earth from the property being transferred.

           As is described in this court decision, delivery is now complete when the person who is giving the land no longer has any control over the deed. He must not only surrender physical possession of the actual land, but he must have no right to recall the deed giving legal title to the land-- the deal must be final. While this seems simple, it has gotten people into trouble just like Mr. Daniels.
     Mr. Daniels clearly intended that his wife of over forty years would inherit full ownership of their home. And the trial court even acknowledged this fact. But because he did not take the advice of others to record the deed and because he chose to keep it in a filing cabinet with the couple's important papers, his wife was denied full ownership. Instead, Mr. Daniels daughter was able to use the lack of formal delivery to defeat his intent and force the home into probate, where the daughter would inherit partial ownership.
     Unfortunately, property ownership and inheritance is too often the ultimate family battle ground. We can only guess at the daughter's motivation for wresting the house away from mom.

      So how can you make sure that you have properly delivered a deed? The best method of delivery is to record a deed in the Land Records. Once a deed has been recorded in the county land records, it becomes a matter of public record and it can’t be taken back. Mr. Daniels might have saved his wife lots of trouble, and he might have prevented a big family squabble if he had taken the advice of his professionals to simply record the deed.

A false deed will not go unpunished.

Recording an altered deed will send you to the slammer. On August 20, 2012, the Maryland Court of Appeals reinstated the Circuit Court criminal conviction of Mr. Neger, who had altered the identity of the grantee in a deed. Click here to read Judge Barbera's decision.

Maryland law says it just isn't kosher to counterfeit any aspect of a deed "with intent to defraud another." Judge Gale Rasin, of the Circuit Court for Baltimore City convicted Mr. Neger under the statute, finding that his alteration of a deed to substitute himself as the grantee (the person receiving title) was "a fraud on the system of recording deeds."

Mr. Neger argued his good faith belief that he was the true owner of the property negated the crime. He took his argument to the Maryland Court of Special Appeals, where the conviction was reversed. The intermediate appellate court held that generally throwing a false deed into the land records was not a fraud on any particular person, and thus did not satisfy the statute's admonition against defrauding "another."  The Specials held that "another" necessarily referenced a specific person, and not the greater mass of folks that rely on the accuracy of the land records system, such as you and me.

The highest appellate court, Maryland's Court of Appeals, granted special permission for an additional appeal of the Specials' decision (given the fancy name "writ of certiorari"). The conviction was reinstated.

Judge Barbera wrote that the "intent to defraud another" exists where it is directed at any persons who rely on the recording system.  It is not limited to a particular person in a particular transaction. In this case, Mr. Neger's good faith belief that he owned the entire interest in the real property did not negate the intent to defraud. He knew others would rely on the recorded item as a true statement of ownership, and that his name appeared as the grantee only because of his alteration.

So, what's the penalty?  Well, aside from the weight of having a conviction for fraud follow you around, the on-line court docket shows that Mr. Neger received a two year sentence, with all but one day suspended, and two years probation.

Baltimore County is attempting to recalculate recording tax on old transactions!

We recently assisted a client that could not get a refinance deed of trust recorded in Baltimore County. The tax office demanded over $5,000 it claimed was due on two prior deeds in the chain of title for transactions one year prior to the deed of trust! Even though the lien sheet for the client's refi was clear, the County claimed the entitlement to recalculate and recapture the tax, and further refused to record the client's deed of trust until the funds were paid. We communicated directly with the County Attorney's Office, explained the operation of the various tax and recording provisions, and arranged for the County's acceptance of the deed of trust for recording within one week's time.

At risk, of course, is that the County's refusal to accept the instrument could have pushed the recording outside the bankruptcy code's "safe harbor" period in the event the borrower files for bankruptcy sometime in the near future. There was also the risk of intervening liens, and a loss of lien priority.

If the County had not accepted our analysis, the client would have had to advance the funds, and then file a claim for reimbursement with the Comptroller's office. This would have cost additional legal fees. The poorest choice would have been for the client to withhold the instrument while chasing the borrower in court to compel payment of the $5,000.

The lesson: Get it recorded! We can help you sort through the recoupment issues, after the lender's lien is perfected.