Title Examination Standards
Chapter 1, App.
Chapter 3. Instruments in the Record
§3.1. Instruments by Strangers.

1. A. An instrument or abstract thereof seen by a title examiner in the course of examination of title, which is executed by any person or other legal entity who, at the time of such execution, did not own some interest in the property as shown by the record, or owned a lesser interest than the instrument purports to convey, charges the examiner and his or her client with knowledge of any interest which such person or entity in fact had which a reasonable inquiry would reveal.

   If a reasonable inquiry does not reveal that such person or entity did in fact have some interest in the subject property or as great an interest as such person or entity conveyed, or if it appears from the context of the situation that the person or entity did not in fact have some such interest, then the examiner may waive objection to the defect caused by the said instrument, if the instrument is not such an instrument as is or could become a root of title under the Marketable Record Title Act.

   Authority: Tenneco Oil Co . v. Humble Oil & Refining Co., 449 P.2d 264 (Okla. 1969); See Pearson v. Mullins, 369 P.2d 825-829 (Okla. 1962); 25 O.S. § 13. Comment: Since the decision in Tenneco, supra, the standard as it existed prior to Tenneco permitting examiners to ignore stray instruments, even with its caveat, and the standard as it was amended in 1976 (see Standard 3.1, 1988 Title Examination Standards Handbook) are not supported by the law and therefore ought not to be continued. While it is true that many stray instruments are the result of a scrivener's error in drafting the description, it is also true that an instrument may appear to be stray because the grantor failed to record the instrument which carried title to said grantor. When the situation is of this latter kind, the case comes under the facts and decision in Tenneco, supra . For this reason the examiner who knows of a stray instrument must make such inquiry that will assure the examiner that the grantor in the stray instrument did not have some interest in the property even though it be not of record.

   A stray instrument or abstract thereof which is or could be a root of title under the Marketable Record Title Act, 16 O.S. §§ 71-80, may not be disregarded by the examiner, but must be regarded as creating, or potentially creating, a root of title under the Marketable Record Title Act.

   Authority: Mobbs v. City of Lehigh, 655 P.2d 547 (Okla. 1982); 16 O.S. §§ 71-80. Comment: See Comment, Standard 30.7 and Comment 4, Standard 30.9; see also 60 O.S. § 515.1, relating to condominium unit instruments involving over conveyances.

2. B. Subject to the provisions of 3.1 C, a stray instrument or abstract thereof which is or could be a root of title under the Marketable Record Title Act, 16 O.S. §§71-80, may be disregarded by the examiner, if:

   1) The stray instrument has been filed of record for less than thirty (30) years, and

   2) There is a title transaction filed of record subsequent to the stray instrument which would prevent the stray instrument from becoming a root of title, and

   3) Reasonable inquiry by the examiner reveals the person or entity which executed the stray instrument did not in fact have some interest in the subject property or did not have as great an interest as such person or entity conveyed, or if it appears from the context of the situation that the person or entity which executed the stray instrument did not in fact have some interest in the subject property.

   Otherwise the stray instrument must be regarded as creating or potentially creating, a root of title under the Marketable Record Title Act and creating a valid cloud on title.

3. C. Pursuant to 16 O.S. § 76, an instrument which is executed by a person or entity, or a decree of distribution entered in the estate of a decedent, who or which does not otherwise appear in the chain of title to the property, cannot be the basis of a root of title under the Marketable Record Title Act, and therefore the examiner may waive any defect caused by such instrument, if: (1) there is apparent from the record an otherwise valid, uninterrupted chain of title traceable to an instrument which is a root of title as defined by the Marketable Record Title Act and (2) a current record owner of the property executes and records an affidavit alleging the current owner or owners are in possession of the property and that the parties claiming under the instrument in question own no interest in the property.

   Authority: 16 O.S. § 76. Caveat: 16 O.S. § 76 does not directly address the situation where an otherwise "stray" instrument, as defined under the statute has been of record for more than thirty (30) years and is, at the time, the apparent root of title. However, because of the requirement of Section 76(b)(1), that there must be an "otherwise" valid chain traceable to an instrument "which is a root of title as defined by Sections 71 through 80" of Title 16, it would appear that the mere recording of an affidavit after the stray instrument had already ripened into a root of title would not be sufficient to revoke the status of such stray instrument as a root of title. However, the issue is not directly addressed by the Statute, nor by a reported decision.

The earliest standard bearing this number and title was repealed by the House of Delegates, Minutes of the House, December 5, 1975, at 51. The standard operative from December 3, 1976 until December 9, 1988 was one of three alternate proposals submitted in the 1976 Report of Real Property Section, 47 O.B.A.J. 2529-38 (1976). Exhibit "A" of the said Report was selected by the Section and, upon its recommendation, was adopted by the House of Delegates, see Minutes of the House, December 2, 1976, at 166-68.

The 1988 Report of the Title Examination Standards Committee proposed an additional revision, see 59 O.B.J. 3098, 3099-3100 (1988), which the Real Property Section approved on December 8, 1988 and the House of Delegates adopted on December 9, 1988. The 1995 Report of the Title Examination Standards Committee, 66 O.B.J. 3256 (10/21/95), recommended revising this standard both for purposes of clarification and to reflect the legislature's adoption in 1995 of 16 O.S. § 76, which was intended to cure most stray deed problems. The Committee's recommendation was approved by the Real Property Section on November 9, 1995 and adopted by the House of Delegates, November 10, 1995, 66 O.B.J. 3751 (1995).

The Report of the 2004 Title Examination Standards Committee recommended amending Title Standard 3.1 to more clearly organize the Standard and to make clear the circumstances under which the affidavit provided for in 16 O.S. § 76 can be used. The Real Property Law Section approved, November 11, 2004, and the House of Delegates adopted the proposal November 12, 2004.

The 2016 Title Examination Standards Sub-Committee proposed adding a new Standard 3.1 B. (thereby redesignating current Standard 3.1 B to 3.1 C) to outline the circumstances that a stray instrument, even from a party or entity previously in title which is capable of being a root of title, may be disregarded. The Real Property Section approved the proposal on November 3, 2016 and the House of Delegates adopted the amendment on November 4, 2016. (superseded document available)

The 2020 Title Examination Standards Sub-Committee of the Real Property Law Section recommended the following editorial changes to the Title Standards as they appear on OSCN to bring the printed handbook and OSCN into conformity. The Real Property Section approved the proposal, and the House of Delegates adopted the amendment on November 13, 2020. (superseded document available)