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Law Revision Commission Analysis of Connecticut Validating Acts - SECTIONS 3-10

SECTION 3. Validating certain conveyances.

This section contains many of the core validating provisions relied upon by title examiners to validate chains of title containing various errors and omissions. Rather than validating these errors and omissions after the fact, the legislature should enact discrete revisions to the conveyancing statutes so that conveyances containing such errors or omissions are self-validating. Proposed language is set out in section 4 of the Commission bill.

Specifically, instruments containing errors are validated by the 1997 validating act as follows:

Subsection (a).

Subsection (a) validates any deed, mortgage, lease, power of attorney, release, assignment or other instrument recorded prior to the effective date of the act containing the following errors:

Subdivision (1). Acknowledgments. Subdivision (1) validates an instrument that was not acknowledged or was improperly acknowledged, or was acknowledged by a person not authorized to do so, or his authority was not properly stated, or the date or place of the acknowledgement was omitted. It validates instruments failing to comply with section 47-5 which requires that all conveyances be "acknowledged by the grantor, his attorney or such duly authorized person to be his free act and deed.…" Note that section 47-17 appears to recognize an unacknowledged instrument as conveying an equitable interest. Various other statutes also address rules for acknowledgments. See, for example, section 47-5a, Persons before whom acknowledgment may be made, and section 47-6, Witnessing and acknowledgment of deeds of corporations and voluntary associations, and Chapter 6, Uniform Acknowledgment Act, Chapter 8, Uniform Recognition of Acknowledgments Act, and Chapter 821a, Forms of Deeds and Mortgages.

History and Comment: This provision generally dates back to section 7 of the 1933 act. The provision concerning failure to state the date or place of the acknowledgment dates to the 1987 act, Special Act 87-12. The underlying policy issue is whether, and in what circumstances, a deed that lacks a proper acknowledgment ought to be sufficient to pass marketable title. The purpose of the acknowledgment is to give subsequent purchasers and encumbrancers evidence of the reliability of the grantor’s signature by requiring that a disinterested officer verify the identity of the signer of the instrument and by requiring the signer to acknowledge that he signs the deed freely.

However, by validating over defective or missing acknowledgments every two years, the legislature has also evidenced a conflicting concern with preserving the marketability of title in cases where a deed is not executed with the proper formalities. Because the legislature has the power to waive the statutory requirement of an acknowledgment, and because the defective deed will have been on record, periodic passage of a validating act does prospectively protect title.

However, use of the validating act every two years has serious conceptual weaknesses. First, it seriously undermines the legislative reason for having an acknowledgment in the first instance. Indeed, an instrument executed without an acknowledgment just before passage of a validating act will, as a legal matter, be virtually as effective as a proper deed. If the acknowledgment requirement is intended to serve some purpose, such an instant validation makes little sense.

Secondly, creditors may intervene between the time of the execution, when legal title has not yet passed, and the time of validation, when legal title vests. The rights of the creditors vis--vis the grantor and grantee in that interval are not currently clear. Presumably a creditor of the grantor could attach the grantor’s legal interest, thereby depriving the grantee of bargained for property. Moreover, a subsequent purchaser or mortgagee of the grantee might inadvertently give value to the grantee notwithstanding the lack of a valid acknowledgment and hence defective title.

There are better ways to protect subsequent titles against defective acknowledgments. The approach taken by many states is to provide a window, after execution of the deed, within which the conveyance may be challenged based on defects such as lack of an acknowledgment. On expiration of that window, the deed is automatically validated notwithstanding the defect. Thus a grantor, claiming within the period of limitations, that the signature was forged and relying on the lack of a valid acknowledgment, would be able to void the defective conveyance. Passage of the period of limitations would ensure subsequent purchasers and encumbrancers that, after a specified date, they could rely on the title notwithstanding doubts about the execution. For possible examples, see the state laws of Alabama, section 35-4-72 (10 year limitation), Alaska, section 34.25.010 (10 years), Arizona, section 33-401 (10 years), Florida, section 694.08 (7 years), Iowa, section 586.1 (10 years for certain defects, specific year for others), Kansas, section 58-2237 (10 years), Maryland, section 4-109 (6 months after recording to challenge defect), Massachusetts, chapter 184, section 24, (10 years), Mississippi, section 89-5-13 (20 years), New Jersey, 2A:5-24 (3 years), New Hampshire, section 477:16 (10 years), Nevada, NRS 111.347, (3 years), Ohio, section 5301.07 (21 years), Vermont, section 348 (15 years), Virginia, section 55-106.2 (3 years), and Wyoming, section 34-8-103 (10 years). Many of these provisions or related provisions similarly validate related defects. Copies are appended to the report. Another approach is to explicitly afford equitable relief. See Wisconsin section 706.04.

Recommendation: This provision should be deleted from future validating acts and replaced with a provision in the General Statutes that automatically confirms a deed over certain specified defects if not challenged within two years (the cycle period for current validations) or such longer period as may be deemed appropriate.

Such a provision is set out in section 4(a)(1) of the Commission bill.

Subdivision (2). Consideration. Subdivision (2) validates an instrument that "omits a statement of consideration."

It is not clear that a deed that lacks a statement of consideration would otherwise be invalid. No statutory provision explicitly requires a statement of consideration. Some form of consideration is necessary to enforce contracts. However, the deed itself is not necessarily a contract. Moreover, while evidence of consideration paid makes the purchaser a "purchaser for value" who may acquire certain protections, one can also make a gift of land, in which case no consideration is actually paid. The Connecticut Supreme Court has also noted that proof of actual consideration may always be made by parol evidence. See R. A. Sherman’s sons Co. v. Industrial & Mfg. Co., 82 Conn. 479, 481 (1909), and Cohen v. Holloways’, Inc. 158 Conn. 395 (1969).

Traditionally, many Connecticut deeds merely recite "one dollar and other valuable consideration", a statement that is virtually pro forma. The statutory forms contained in section 47-36c, setting out statutory forms for deeds, include the statement "for consideration paid" in the statutory forms for warranty deeds, quitclaims deeds, assignments of mortgage, conservator’s deeds, testamentary trustee’s deeds, executor’s deeds, and administrator’s deeds. That statement, again, is pro forma, rather than indicative of any actual consideration. In any case, the statutory forms are themselves merely alternative sanctioned forms. They do not invalidate any otherwise valid deed. The marketable title act, sections 47-33b through 47-33l, does not reference consideration.

In short, the policy behind any requirement for a statement of consideration is murky at best. If there is such a requirement and the statement is omitted, this section would validate the deed.

History and Comment: This provision dates back to section 5 of the 1933 act.

Recommendation: There is no public policy supporting any requirement for a statement of consideration in the instrument of conveyance. Rather than enacting periodic validating acts to validate a failure to include such a statement, the statute should be explicitly revised to clarify that a conveyance does not require a statement of consideration. Language is set out in section 4(b)(7) of the Commission bill. For examples of state provisions, see Alabama section 35-4-34 and West Virginia section 36-3-6.

Subdivision (3). Attestation. This subdivision validates an instrument that "[w]as attested by one witness only or by no witnesses". Section 47-5 requires that all conveyances be "attested to by two witnesses with their own hands". This subdivision validates a conveyance failing that requirement.

History and Comment: This provision dates back to section 5 of the 1933 act. See the discussion above under subsection (1) with respect to defective acknowledgments. The witnesses serve a similar purpose to the acknowledgment and deficiencies could be similarly addressed.

Recommendation: Legislation should be enacted that automatically confirms a conveyance with defective witnesses if not challenged within two years after recordation. See discussion under subsection (1) above. Language is set out in section 4(a)(2) of the Commission bill.

Subdivision (4). Execution date. This subdivision validates an instrument that "[o]mits or incorrectly states the execution date". The statutes setting out conveyancing requirements do not appear to require inclusion of the date of execution, although the sanctioned forms under section 47-36c all include the execution date. Inclusion of an execution date does help establish the date from which certain rights or obligations as to the grantor and grantee commence. To the extent that failure to include an execution date might invalidate the transfer, this subdivision validates it.

History and Comment: This provision dates back to section 4 of the 1963 act, Special Act 63-241. A failure to state the execution date is a insubstantial defect, if it is a defect, and should not invalidate a conveyance. With respect to third party creditors, the important date is the date of recordation. The execution date only has relevance as between the parties and has no relevance as to whether the deed was, in fact, validly executed if other formal requisites are met.

Recommendation: This provision is only in the validating act out of an abundance of caution. It serves no purpose other than confusion. Section 4(b)(1) and (2) of the Commission bill sets out language that certain insubstantial defects, including the omission of the date of execution, do not invalidate the conveyance.

Subdivision (5). Signature. Section 47-5 requires that conveyances be appropriately signed. This subdivision validates a deed even if it was not signed if it "was acknowledged and delivered by the grantor."

History and Comment: This provision dates back to section 8 of the 1933 act. It purports to validate unsigned deeds as long as the deed is acknowledged and delivered. This is an astonishing provision in that the deed as initially executed must be void as unsigned and the acknowledgment in the absence of a signature must be defective. Such a provision, validating an unsigned transaction, goes too far.

Recommendation: This provision is inappropriate and is not addressed in the Commission bill.

Subdivision (6). Recording date. This subdivision validates a conveyance that "[f]ails to disclose the date when received for recording or when the recording fails to disclose such date." Section 47-10 provides that a conveyance is not effectual against persons other than the grantor and his heirs unless recorded. The date of recording therefore establishes various priorities and rights against third parties flowing from the recording.

Requirements for recordation are set by the chapter 92 provision concerning town clerks, in particular by sections 7-23, 7-24, and 7-25. Section 7-24(c) provides that the town clerk shall "on receipt of any instrument for record, write thereon the day, month, year and time of day when he received it, and the record shall bear the same date and time of day…" As noted, this subdivision validates the instrument if such a recording date does not appear.

History and Comment: This provision dates back to section 8 of the 1933 act. The failure by a town clerk to properly record an instrument should not invalidate the instrument itself. That failing to record may, of course, create problems of proof among the parties. Nonetheless, the parties to the transaction, the grantor and grantee, have done everything within their power to effectuate the transaction and, as between the grantor and grantee, the deed is effective even if not recorded. In short, the absence of a recording date would not invalidate the deed. This validating provision is unnecessary.

Recommendation: A discrete revision to the conveyancing statutes should clarify that a conveyance is not invalidated by an act or omission of the town clerk. See section 4(b)(5) of the proposed draft. For a similar state provision to that recommended see Kentucky, section 382.230.

Subdivision (7). Recording date earlier than stated execution or acknowledgment date. This subdivision validates a conveyance that "[c]ontains a date or date of record which is earlier than the stated date of execution or acknowledgement…"

Obviously, if the record date is earlier than the execution date, one or the other is erroneous. This subdivision nonetheless validates the conveyance. Use of the phrase "a date or date of record" is unclear. What date, other than the date of record is referred to?"

History and Comment: This provision dates back to section 8 of the 1933 act. The fact that a date is erroneous does not go to the question of whether the parties executed a conveyance. The conveyance is executed by compliance with the statutory formalities, delivery and recordation. Any glitch in the date is insubstantial as to the fact of the transaction, although it may raise difficult issues of proof for the respective parties.

Recommendation: This provision is unnecessary. A discrete revision to the conveyancing provisions should clarify that such insubstantial defects do not invalidate a conveyance. Language is set out in section 4(b)(2) of the Commission bill.

Subdivision (8). Town clerk’s signature not appended. This subdivision validates a conveyance that "[d]oes not disclose that the town clerk appended his or her signature thereto, either on the deed or in the records book." See section 7-14. That section refers to the town clerk’s duty to "attest the records of conveyances of land with the genuine signature of the town clerk or his assistant…" However, that section now, alternatively, allows a town clerk to certify volumes of records if a photographic process is used. In other words, if there is a town that is not yet using a photographic process and the town clerk has failed to attest an instrument under section 7-14, this provision validates that instrument.

History and Comment: This provision dates back to section 6 of the 1933 act. See comment to subdivision (6) above. There is no policy reason why a failing by the town clerk should or would invalidate the recorded transaction. Thus the transaction itself is not in need of validation.

Recommendation: A provision should be added to the General Statutes clarifying that errors by a town clerk do not invalidate a conveyance. See comment to subdivision (6) above and the proposed language in section 4(b)(6) of the Commission bill.

Subdivision (9). Grantee not recognized to have capacity. This subdivision validates a conveyance "to any grantee not recognized by law to have the capacity to take or hold an interest in real property, such conveyance to any such grantee, and subsequent transfers of same by such grantee, being by this act confirmed as to such grantee and subsequent transferees, their heirs, successors and assigns".

The scope of this validating provision is uncertain. At one time, for example, certain nonresident aliens were not authorized to hold real estate in Connecticut. However, that rule was abrogated by statute, see Public Act 85-211, and all aliens are now authorized to hold property. See Section 47-7a. Moreover, any prior transfer to an alien is also expressly validated by section 47-7a. (See also subdivision (11) below, which also explicitly validates such transfers.) Minors may also hold property, although that right is subject to limitations by minority status, parental guardianship, and probate court supervisory powers. The right to have and hold property is one of our more fundamental constitutionally protected rights. This provision may have been intended to apply to transfers to voluntary associations which at common law could not hold real estate. See subdivision (17) below. The Law Revision Commission is currently reviewing the law concerning transactions by voluntary associations and recommends that the validity of those transfers be specifically addressed by legislation concerning those associations.

History and Comment: This provision dates back to section 3(a)(9) of the 1985 act, Special Act 85-47.

Recommendation: Absent a demonstrated need, and in the light of further Commission review of voluntary associations, this provision need not be addressed. See the analysis to subdivision (17) below with respect to rights of voluntary associations.

Subdivision (10). Organization improperly signed or acknowledged as individual.

This subdivision validates an instrument that "[i]n the case of a conveyance or authorization of such conveyance by a committee of any society, organization or corporation or by a committee acting under the authority of any court, was signed or acknowledged by such committee as an individual or individuals".

This does not address any statutory requirement.

History and Comment: This provision dates back to section 8 of the 1933 act. The provision is so open-ended that it is unclear what acts or actions are being validated. Other statutes already govern requirements for corporate conveyances. As noted above, the Law Revision Commission is currently reviewing requirements for voluntary associations.

Recommendation: Absent additional information, and in the light of the Commission's review of voluntary associations, this provision is unnecessary.

Subdivision (11). Validating transfers to aliens. This subdivision validates transfers "made to or by any alien not authorized by law to hold real estate, such conveyances to any such alien, and subsequent transfers of same by such alien, being by this act confirmed as to such alien and transferee, and their respective heirs, successors and assigns, and made effective to all intents and purposes as though the same had been made to and by a United States citizen". See subdivision (9) above.

Section 47-7a now expressly provides :

"(a) Any alien, whether or not resident in the United States, may hold, acquire, lease, inherit and transfer real estate in this state in as full a manner as native-born citizens.

(b) Any transfer of real estate to any such alien prior to October 1, 1985, is validated."

Passage of this section 47-7a provision removed any need for any other validating provision.

History and Comment: This provision dates back to section 15 of the 1981 act, Special Act 81-33. With passage of section 47-7a, such a validating provision is unnecessary.

Recommendation: This provision is unnecessary.

Subdivision (12). Pursuant to power of attorney. This subdivision validates a transfer "executed by an attorney-in-fact pursuant to a power of attorney," where "such instrument was signed or acknowledged by the attorney-in-fact in his individual capacity".

Properly, the attorney-in-fact should sign and acknowledge the instrument in his capacity as attorney-in-fact to assist the title examiner in understanding the record. See for example the forms set out by section 47-5(b), section 1-34(3), and section 1-62(4). This subdivision validates transfers that fail to comply with those forms.

History and Comment: This provision dates back to section 4 of the 1967 act, Special Act 67-382, which only validated transfers on or before January 1 1950. A revised version first appears in section 15 of the 1973 redraft of the validating provisions. That version cites an error arising from the signing of the instrument "in his individual capacity".

Recommendation: The signature of an attorney-in-fact who is in fact duly authorized to convey should prove sufficient to transfer the interest provided that other requisites, such recordation of the power of attorney, are satisfied. Legislation should be enacted to provide that specified errors by an attorney-in-fact (such as those specified in this subdivision and under subdivisions (13) and (14) below) are self-validated after a period of limitation to allow challenge to the instrument based on the defect in form. (See also the discussions under subdivisions (13) and (14)). Such a provision is set out in section 4(c) of the Commission bill.

Subdivision (13). Failure to reference power of attorney. This subdivision validates a transfer that "[w]as executed by an attorney-in-fact pursuant to a power of attorney but such instrument does not reference the power of attorney."

Section 47-10 requires that "[w]hen a conveyance is executed by a power of attorney, the power of attorney shall be recorded with the deed, unless it has already been recorded in the records of the town in which the land lies and reference to the power of attorney is made in the deed." Subdivision (13) validates the deed even if a required reference to the power of attorney is omitted.

History and Comment: This provision dates back to section 15 of the 1973 redraft of the validating provisions. That version cites an error arising from a failure "to recite that the power of attorney was recorded".

Recommendation: Transfer pursuant to a proper power of attorney that is, in fact, of record ought to be sufficient to transfer the interest notwithstanding a failure to reference the power of attorney in the instrument. Such a power of attorney, if of record, is indexed and is discoverable by a title examiner. The reference is provided as a convenience to the examiner. However, because the defect involves a statutory requirement and the legislature has seen the need to validate such transfers, legislation should clarify the situation. A provision should be enacted to clarify that this defect is self-validated after a period of limitation allowing challenge to the instrument based on the defect in form. Such a provision is recommended in the consolidated conveyancing revisions in section 4(c)(2) of the Commission bill.

Subdivision (14). Previously effective power of attorney not effective when recorded. This subdivision validates a transfer that "[w]as executed by an attorney-in-fact pursuant to a power of attorney that was effective prior to the execution of the instrument but was not at the time of or prior to the recordation of such instrument recorded on the land records but is recorded as of the effective date of this act".

Logically, a power of attorney must be effective at the time the instrument is executed for the attorney-in-fact to have the authority to sign. This provision verifies that the instrument is valid even though the power of attorney was not thereafter recorded until after its effectiveness was terminated. Between the parties, the instrument is valid from the date of execution. Recordation of the instrument puts third-parties and the world on notice.

History and Comment: This provision dates back to section 3(a)(14) of the 1987 act, Special Act 87-12. A prior version, in section 3(a)(14) the 1985 act, merely validated if the power of attorney "was not at the time of or prior to execution recorded on the land records but is recorded as of the effective date of this act." What is most critical with respect to a power of attorney is that the power is effective at the time the instrument is executed and that it appears in the chain of title or is otherwise reasonably discoverable. In that case, the transfer vis--vis the parties is valid because the transferring instrument was, in fact, executed pursuant to a valid power of attorney. Moreover, while the world at large, examining the record title, is not apprised of that fact from a direct examination of the chain of title, a competent examiner could find a recorded power of attorney even if recorded substantially after recordation of the instrument itself. See Mix v.Hotchkiss, 7 Conn. 32 (1840), in which the court observes that the recordation requirement is intended to place parties on notice and finds the requirement that the power of attorney be recorded with the deed irrelevant with respect to parties that have actual notice.

Recommendation: Language should be enacted in the General Statutes as recommended in section 4(c)(3) of the Commission bill to self-validate any such defect after a two year period of limitations.

Subdivision (15). Corporate conveyances. This subdivision validates a number of conveyances to or by corporations in the following circumstances:

Subparagraph (A). The instrument is validated where signed or acknowledged by only one or more officers individually, but the corporation is designated in the instrument.

Section 47-5 requires that a corporate transfer be subscribed "by a duly authorized person". A corporate deed should be signed by a person authorized by the corporation to execute that power and recite that the power is executed in the person’s duly authorized capacity. See generally chapter 601 concerning business corporations. This subparagraph validates the transfer even if executed by a person individually rather than in some corporate capacity.

History and Comment: This provision dates back to section 8 of the 1933 act. Nothing in section 47-5 requires that the capacity or basis of authorization of the signer of the instrument be indicated in the instrument. The requirement is that the signer actually be duly authorized. Therefore, an instrument designating that the transfer is by the corporation and that is actually executed on behalf of the corporation by an authorized person should be valid and should not require validation.. A recital of the basis of the authority merely makes that job easier. Rather than periodically validating such deeds that are signed individually, the General Statutes should clarify that recitation of the authority in which the deed is signed is not required for the instrument to validly transfer an interest. However, where an instrument is signed and acknowledged in an individual capacity, rather than on behalf of the granting entity, a substantive defect needs to be addressed. In that case, where the signatory failed to clarify on whose behalf he acted, the instrument should only be validated after a period of limitations to allow interested parties to challenge the instrument.

Recommendation: The legislature should enact a provision in the General Statutes clarifying the requirements for form with respect to corporate transactions. Proposed language is set out in section 4(a)(3) of the Commission bill - addressing substantive defects - and in section 4(b)(8) - addressing nonsubstantive defects.

Subparagraph (B). The instrument is validated where it fails to disclose the official capacities of the person executing it. As noted under subparagraph (A) above, the person executing on behalf of a corporation should indicate his official capacity. This subparagraph validates the instrument if he fails to do so.

History and Comment: This provision dates back to section 8 of the 1933 act. See discussion and recommendation under subparagraph (A) above.

Recommendation: Clarifying legislation should be enacted to clarify the requirement for corporate conveyances. Proposed language is set out in section 4(b)(8) of the Commission bill.

Subparagraph (C). The instrument is validated if it "[w]as signed or acknowledged by an officer who had ceased to be such at the time of the execution or acknowledgement".

This subparagraph validates the instrument where the person executing it on behalf of the corporation was not an officer of the corporation at the time of execution.

History and Comment: This version of the provision dates back to section 23(b)(7) of the 1973 act. Earlier versions validated a corporate transfer "that was not signed by the officer duly authorized to sign such deed." See section 5 of the 1933 act.

Recommendation: Section 4(b)(8) clarifies that the examiner may rely on a deed that fails to disclose the authority of the signatory. Any other rule would require the impossible inquiry into the corporate authority for defunct corporations where the details of corporate operations and authority can no longer be ascertained. That section 4(b)(8) provision obviates the need for this subparagraph.

Subparagraph (D). This subparagraph validates the instrument if it "[w]as executed or recorded when the corporation was not formed or chartered, had not yet received its corporate franchise, or its corporate existence had not begun."

This provision validates instruments even though executed on behalf of a non-existent corporation. Presumably, the corporation is formed after the execution and has effectively ratified the earlier conveyance by non-action.

History and Comment: This provision dates back to section 23(b)(9) of the 1973 act. It purports to validate transfers made by nonexistent corporations. Serious consideration should be given to whether such a transfer should be, or in fact can be, validated. Validating such a provision creates a legal fiction that flies in the face of reasonable expectations. The legislative intent may be to recognize certain actions by unincorporated entities in anticipation of incorporation. If so, such a provision could be enacted in the General Statutes, recognizing the power of such legal entities to hold and transfer property. The Law Revision Commission is currently reviewing proposed uniform legislation in this field with respect to unincorporated associationss. See the comments to subdivision (17)(A) below. However, a blanket validation provision such as this one, validating transactions by a nonentity without other standards seems unwarranted without further review.

Recommendation: This provision is not addressed by the Commission bill.

Subdivision (16). Conveyance by executor, administrator, guardian, trustee, conservator, or other fiduciary. This subdivision validates conveyances by certain fiduciaries as follows:

Subparagraph (A). The conveyance is validated if it "[w]as made by a fiduciary authorized or ordered by a court of probate to sell and convey the real estate, and the fiduciary sold and conveyed the same in accordance with such authority and received the consideration therefor, but failed to recite in such conveyance the nature and extent of the power under which he or she acted".

As in other cases involving corporations and powers of attorney, it is convenient if the person executing a deed on behalf of another indicates the capacity and authority for that act so that a title examiner can ascertain the validity of that authority. Historically, at least, a failure to adequately recite a fiduciary’s authority on the deed itself was sufficient to render the deed void. See, Lockwood v. Sturdevant, 6 Conn. 373, at 386 (1827). Subsequent opinions suggests that the requirement is no longer strictly construed. See Solomon v. Wixon, 27 Conn. 520, 529, holding Lockwood to be substantially overruled.

The form for an Administrator’s deed set out under section 47-36c provides a skeletal assertion of authority that the conveyor is "duly qualified and authorized administrator of the estate of ___late of ___". See also, generally, part V of chapter 801b, concerning the sale or mortgage of estate property, sections 45a-324 through 45a-327, section 45a-638, and section 45a-662. However, a deed lacking any assertion of authority or capacity may be voidable and a self validating provision is necessary to validate such a defect.

History and Comment: This provision dates back to section 6 of the 1933 act. Conceptually, such a defect makes the deed voidable in the first instance, and therefore, requires a mechanism for validation.. The Commission recommends that such a deed not to valid unless information is recorded sufficient to apprise a title examiner of the basis of the conveyor’s authority, or unless a period of limitations is provided to allow interested parties to challenge the instrument. Thus, conceptually, a rule should allow an examiner or interested party, on determining that the conveyor had authority to execute the deed, to validate the deed by recordation of an affidavit reciting the basis of authority. Such an approach would provide a record trail to the relevant authority for a subsequent examiner.

Recommendation: A provision allowing correction of the record by affidavit, or self-validating such an instrument after a two year period of limitation, should be enacted in lieu of this validating provision. A provision to that effect is set out in section 4(e)(3) of the Commission bill. See, for example, Idaho, section 55-816, and Minnesota, section 507.29, re the use of validating affidavits.

Subparagraph (B). The conveyance is validated if it "[w]as made by a fiduciary who sold and conveyed the real estate under an order of the probate court and received the consideration therefor but failed in any manner to comply with such order of such court of probate".

This is a blanket provision apparently validating all fiduciary transfers under an order of the probate court for which consideration was received.

History and Comment: This provision dates back to section 6 of the 1933 act. This provision is overly broad in that it covers even substantive failures to comply with the order of sale.

Recommendation: This provision is not addressed by the Commission bill.

Subparagraph (C). The conveyance is validated if it "[w]as made by a fiduciary who sold and conveyed the real estate by authority of an order of a probate court without having filed a bond covering the faithful administration and distribution of the avails of such sale".

Section 45a-164 concerning the sale of real estate by a fiduciary requires that authority to convey be subject to "giving a probate bond faithfully to administer and account for the proceeds of the sale…according to law" except that the bond may be dispensed with in certain cases under section 45a-169. This subparagraph validates the conveyance notwithstanding the failure to file a bond.

History and Comment: This provision dates back to section 5 of the 1967 act, Special Act 67-382. Earlier acts limited the effect of the provision to cases in which trust companies conveyed real estate without a bond. See section 6 of the 1933 act. Curiously, trust companies are now exempt from the bond requirement under section 45a-169. An instrument with respect to which a fiduciary failed to file a required bond should not be validated by a periodic validating act. If the statute validates a conveyance of a property that was sold without a bond, the beneficial owners of the property may be deprived of both the property, which is sold for value paid to the fiduciary, and of the assets of the sale if the fiduciary absconds. Such a failing should not be routinely validated, particularly because the periodic validating act process does not always allow time for the claims to be made prior to the validation. The more appropriate process would automatically validate the sale only after expiration of the period within which a claim could be made, or where the fiduciary has accounted for the proceeds of the sale in an administrative account that has been approved by the court.

Recommendation: A self-validating provision should be enacted in the General Statutes that validates the conveyance if the proceeds are accounted for or if the transaction is not challenged within two years of recordation of the conveyance. Language is set out in section 4(e)(1) of the Commission bill.

Subparagraph (D). Subparagraph (D) validates the conveyance if it "[w]as made by a fiduciary, who sold and conveyed the real estate without an order of the probate court having jurisdiction and received the consideration therefor and without having authority to make such sale, provided the same was made six years or more prior to the effective date of this act".

As noted above, section 45a-164 governs a fiduciary’s sale of real estate pursuant to an order of the court of probate. Subparagraph (D) validates the sale even if it was made without a required order of the court of probate provided the transfer was made six years or more before the effective date of the act.

History and Comment: This provision dates back to section 6 of the 1933 act. However, that version did not validate the conveyance unless it was 15 years or more prior to passage of the validating act, rather than the 6 year period set by the 1997 act. The time period was reduced to 6 years by section 5 of the 1973 act. This provision purports to validate sales of property that are subject to supervision of the probate court but that do not receive the required court order authorizing the sale, a serious violation of the public policy requiring that estate property be protected by oversight of that court. In such a case, the fiduciary, who acts as an agent of the court, does not actually have title to convey. Such a defect should not be validated. (If such a deed must be validated because of concerns as to integrity of the land records, the validation period should parallel the 15 year period currently recognized for adverse possession.)

Recommendation: This provision is not addressed by the Commission bill. The interested parties should be required to reopen the estate so that the matter can be reviewed and rectified by the probate court or should otherwise be required to quiet title. No specific legislation is required to allow that to occur.

Subparagraph (E). Subparagraph (E) validates the conveyance if it "[w]as made to a purchaser for value, at a time when no publication of the notice of the probate court of the hearing on the application for an order of sale was made".

Section 45a-164 provides for public notice or other notice ordered by the court of probate of the probate court hearing to authorize the sale. Subparagraph (E) validates the conveyance even if that notice was not given.

History and Comment: This provision dates back to section 6 of the 1933 act. Under the ruling in Dorrance v. Raynsford et Ux, 67 Conn. 1, 6 (1895), a probate court order of sale without required notice of the hearing and a deed based on such an order are invalid. Periodic validation of deeds violating this notice requirement undermine procedural requirements that are necessary for the protection of beneficiaries.

Recommendation: These defects should be validated after a period of limitations rather than be periodically validated after the fact. Because the defect goes to notice, rather than to the underlying authority of the court, the defect, although substantive, should be validated after an adequate period within which an interested party who did not receive the notice can contest the transfer, or where the fiduciary has accounted for the proceeds in a properly noticed hearing before the probate court. Since current policy provides for validation every two years, a two year period of limitations seems reasonable. Proposed language for such a self-validating provision is set out in the consolidated conveyancing revision in section 4(e)(2) of the Commission bill.

Subparagraph (F). Subparagraph (F) validates the conveyance if it "[w]as executed and delivered by one purporting to be a fiduciary but no record of whose actual appointment was contained in the probate records, provided the conveyance was given by one who did in fact act as a fiduciary and whose acts as such were approved by the probate court having jurisdiction".

History and Comment: This provision dates back to section 6 of the 1933 act. It purports to validate conveyances by a person with respect to whom there is no record of actual appointment. Such a validating provision is unreasonable and unnecessary in the light of modern practice. While in a less formal time such glitches may have occurred with some frequency, it is not unreasonable to expect that a probate court maintain a record of the appointment of court-supervised fiduciaries. If a person was not appointed as a fiduciary or otherwise lacked authority, his actions ought not to be validated.

Recommendation: This provision is not addressed in the Commission bill.

Subparagraph (G). Subparagraph (G) validates the conveyance if it "[w]as signed or acknowledged by such fiduciary individually, rather than in a fiduciary capacity."

The fiduciary capacity in which a deed is executed ought to be evident from the instrument. This subparagraph specifically validates the transfer even if it is not.

History and Comment: This provision dates back to section 12 of the 1947 act, Special Act 47-521. The comments to subparagraph (A) are applicable here. If the deed contains an adequate recitation of authority, the manner in which it is signed ought not to matter. What is critical is that the fiduciary actually be authorized to convey and that an examiner be able to verify that authority. Thus a conveyance that contains the recitation of authority and is executed by the fiduciary should be valid even if it does not recite the capacity under the signature. If the basis of authority cannot be ascertained from the instrument, the instrument ought nonetheless to be validated if an appropriate affidavit is recorded that fills in the deficiency in required information. Otherwise, such a defect should be covered by a general provision self-validating the defect after a period of limitations.

Recommendation: Proposed language is set out in section 4(e)(3) of the Commission bill.

Subparagraph (H). Subparagraph (H) validates a release or assignment of mortgage if it was executed on behalf of a deceased nonresident by an executor, administrator or trustee and the certificate of appointment and qualification of the fiduciary is not attached.

Section 49-12, Release of mortgage by foreign executor, administrator, trustee, conservator, or guardian, requires that along with the release or assignment "the executor, administrator, trustee, guardian or conservator shall file for record, with the town clerk of the town in which the real estate is situated, a certificate of his appointment and qualification, issued by the court having jurisdiction of the settlement of the estate…" The subparagraph validates the release or assignment by the foreign fiduciary, notwithstanding a failure to file the required certificate.

History and Comment: This provision dates back to section 13 of the 1947 act, Special Act 47-521. This provision addresses releases and assignments of mortgages executed by out-of-state fiduciaries that fail to comply with section 49-12 concerning a recordation of a fiduciary’s appointment and qualification. Note that section 49-12 requires recordation of such a certificate by guardians and conservators which is not addressed by this validation provision.

Recommendation: This issue should be addressed by a provision that allows the self-validation of such a release or assignment after passage of a 2 year period of limitation. Language is set out in the consolidated conveyancing revision in section 4(f) of the Commission bill.

Subdivision (17). Conveyance to or by partnership or voluntary association. This subdivision validates conveyances to or by partnerships or voluntary associations in the following circumstances:

Subparagraph (A). This subparagraph validates the conveyance if it "[w]as executed in favor of a grantee that was a voluntary association or a partnership not created under the Uniform Partnership Act or the Uniform Limited Partnership Act".

This subparagraph validates transfers to voluntary associations and to partnerships that are not formed under Connecticut’s express statutory provisions. See generally the Uniform Partnership Act, chapter 614, and the Uniform Limited Partnership Act, chapter 610. However, such a validating act is not necessary to validate transfers to a partnership because any partnership will be covered by an authorizing statute. Under the Uniform Partnership Act, any partnership that is not formed under some other partnership statute is governed by the Uniform Partnership Act. See section 34-314. Thus any partnership is now covered by either the Uniform Partnership Act or some other authorizing statute. Such a provision will recognize the right of the partnership to hold and transfer property. See sections 34-315 and 34-323, for example. A transfer to such a legal entity does not require further legal validation.

The issue is less clear with respect to voluntary associations. According to the Connecticut Supreme Court decision in East Haddam Central Baptist Church v. East Haddam Baptist Ecclesiastical Society, 44 Conn. 259 (1877), a voluntary association as such cannot hold real estate. However, under section 52-76, the legislature has authorized voluntary associations to sue and be sued. Moreover, every validating act since 1973 has validated real estate transfers to such associations. Such acts clearly authorize associations to possess such real estate.

History and Comment: This provision dates back to section 11 of the 1973 act. An earlier, related version, validating transfers to voluntary associations dates back to section 5 of the 1933 act. As noted above, it is unnecessary to validate conveyances to partnerships.

Recommendation: Conveyances to partnerships do not need to be validated. Conveyances to voluntary associations should be recognized by statute since that is the clear policy of the state. The Law Revision Commission is currently reviewing the law of voluntary associations with respect to unincorporated nonprofits. The Commission’s proposed revision should clarify the rights of voluntary associations with respect to real estate with respect to those entities. The Commission and the legislature should consider enacting more general provisions governing real estate transactions for all unincorporated associations. However, that issue requires significant policy decisions concerning the legal effects and powers of those associations and is therefore not addressed by this bill.

Subparagraph (B). This subparagraph validates the conveyance if it "[w]as executed by less than all of the members of a voluntary association and the immediate grantor to said voluntary association but not the voluntary association itself, or by the voluntary association when execution should otherwise have been by the members thereof".

History and Comment: This provision dates back to section 4 of the 1969 act. As noted above, under subparagraph (A), the law of voluntary associations is insufficiently clear with respect the rights to hold and transfer property. Rather than continue to periodically validate transfers, the law itself should be clarified.

Recommendation: The law governing property transactions by unincorporated associations should be clarified after further study. See comments to subparagraph (A) above.

Subparagraph (C). This subparagraph validates the conveyance if it "[w]as executed in the partnership name although title was in the individual partners".

History and Comment: This provision dates back to section 11 of the 1973 act. Transfers of partnership property are generally governed by section 34-323. What constitutes partnership property is governed by sections 34-315 and 34-316. Subsection (d) of section 34-316 specifically presumes that property held individually is separate rather than partnership property. Thus the validating provision validates conveyances by a partnership of property to which they apparently do not have title. Such a validation reflects dubious public policy and allows a validation outside any chain of title that an examiner would have access to.

Recommendation: Absent some compelling reason, such transactions should not be validated. This provision is not addressed by the Commission bill.

Subdivision (18). Business trust or foreign limited partnership. This subdivision validates a conveyance if it "[w]as executed to or by a business trust or a foreign limited partnership in its own name, whether or not the business trust or foreign limited partnership had filed a copy of its declaration of trust or limited partnership agreement in the Secretary of the State’s office prior to said delivery or execution".

Foreign limited partnerships. Foreign limited partnerships are governed by the Uniform Limited Partnership Act, chapter 610. Section 34-38g of that act requires that "[b]efore transacting business in this state, a foreign limited partnership shall register with the Secretary of the State." That provision, however, does not appear to require that the registration include a copy of the limited partnership agreement. Moreover, section 34-38l already provides that "[t]he failure of a foreign limited partnership to register in this state does not impair the validity of any contract or act of the foreign limited partnership…" This validating provision is therefore unnecessary as to foreign limited partnerships.

Business trusts. Business trusts are generally governed by chapter 615, Statutory Trusts. See section 34-501, which defines "statutory trust" as including a "business trust". Under section 34-503, "[e]very statutory trust shall file the original, signed copy of its certificate of trust with the office of the Secretary of the State." However, if such a trust fails to file the certificate of trust, it remains a common law trust. See section 34-502. Nothing in chapter 615 "shall be construed to limit, prohibit or invalidate the existence, acts of obligations of any common law business trust." Section 34-502.

The certificate of trust referred to under chapter 615 would appear to be the same instrument referred to as a "declaration of trust" in subdivision (18) of the validating act. The subdivision validates the conveyance if the trust has failed to file. Current law, however, does not require such a filing for the conveyance to be valid.

Chapter 615 also governs "foreign statutory trusts." Section 34-539, governing the transaction of business by a foreign statutory trust that did not register as required by section 34-531, already provides that failure to register does not "[i]mpair the validity of any contract or act of the foreign statutory trust."

History and Comment: This provision dates back to section 3(a)(18) of the 1985 act, Special Act 85-47. As noted above, such a provision is already covered by general statutes with respect to foreign limited partnerships and foreign statutory trusts.

Recommendation: These provisions are unnecessary and are not addressed by the Commission bill.

Subdivision (19). Leases. This subdivision validates "a notice of lease" where the notice "failed to state the term of the lease, or whether or not the lease was renewable, or to state whether or not said lease contained an option to purchase the leased premises or to extend the term of the lease, or where a copy of the lease is on file."

Section 47-19 governs leases for more than one year which are ineffective against various third parties unless executed and recorded in the same manner as a deed of land "provided a notice of lease in writing, executed, attested, acknowledged and recorded in the same manner as a deed of land and containing (1) the names and addresses, if any are set forth in the lease, of the parties to the lease, (2) a reference to the lease, with its date of execution, (3) the term of the lease with the date of commencement and the date of termination of such term, (4) a description of the property contained in the lease, (5) a notation if a right of extension or renewal is exercisable, (6) if there is an option to purchase, a notation of the date by which such option must be exercised and (7) a reference to a place where the lease is to be on file shall be sufficient."

Subdivision (19) validates the notice of lease even if it fails to comply with various of the section 47-19 requirements.

History and Comment: This provision dates back to section 13 of the 1963 act, Special Act 63-241 except that the provision concerning failure to state whether the lease contained an option to purchase dates back to section 13 of the 1967 act, Special Act 67-282, and the provision concerning failure to state whether the lease was renewable dates back to section 3(a)(19) of the 1985 act, Special Act 85-47.

Recommendation: The purpose of the requirement for recordation of a notice of lease is to place third parties on notice of the existence of an interest that could effect the value of the property as to subsequent purchasers and encumbrancers. However, the notice of lease is itself, an encumbrance on the title. The primary purpose of validating provisions is to allow clear marketable title notwithstanding a defective instrument in the chain of title. Validating leases, on the other hand, has the effect of perpetuating a cloud on title, notwithstanding a defect. The Commission recommends that defective notices not be validated.

Subdivision (20). Failure to state town and state. This subdivision validates a conveyance that "[f]ails to state the town and state in which the real property described in the instrument is located".

No statutory provision requires that the town and state be set out in the conveyance. As a legal matter, a description is sufficient for conveyancing purposes if it is sufficient to identify the property. If it is sufficient, it will not need a validating act to confirm it. If the description is insufficient, the validating act cannot resolve the problem of what was conveyed.

History and Comment: This provision dates back to section 3(a)(20) of the 1985 act, Special Act 85-47. Such a failing, however, is an insubstantial defect where the description is otherwise sufficient to identify the property.

Recommendation: No such provision is necessary and this matter is not addressed by the Commission bill.

Subdivision (21). More than one defect. This subdivision validates a conveyance that "[c]ontains more than one of the defects enumerated in this act".

History and Comment: This provision dates back to section 10 of the 1963 act, Special Act 63-241.

Recommendation: This provision derives from an abundance of caution and is unnecessary, in any event, given the recommendation to no longer pass such a validating act.

Subsection (b). Foreclosure of ward’s mortgage.

This subsection validates a judgment of foreclosure where the foreclosure action was brought in the name of the guardian or conservator, or the certificate of title was recorded in the name of the guardian or conservator.

History and Comment: This provision dates back to section 15 of the 1947 act, Special Act 47-521. This validates what would be an extraordinary error under modern practice. Moreover, it validates a title recorded outside the chain of title, a dubious policy in any case.

Recommendation: This provision is inappropriate and is not addressed in the Commission bill.

Subsection (c). Committee deed.

This subsection provides that "No committee deed ordered by the court in a foreclosure action, recorded prior to the effective date of this act in the land records in the town in which such real property is located, shall be deemed invalid because the approval of the judge omits or incorrectly states the date of such approval."

If real estate is foreclosed by sale, the property is conveyed by a committee deed after the judgment has been issued and the sale ratified by the court. See sections 49-24, 49-25, and 49-26. This subsection validates that deed even if the judge incorrectly stated the date of his approval of the sale.

History and Comment: This provision dates back to section 3(c) of the 1987 act, Special Act 87-12. The error validated is insubstantial because a party examining the record after recordation of the committee deed is on notice that the foreclosure file must be reviewed to determine the proper foreclosure of rights. The judge’s failure to state the proper date of approval of the sale should not effect substantive rights because the approval of the sale itself will be on record. That approval will validate rights of the purchaser. Rights of third parties generally will be determined by the instruments of record.

Recommendation: The conveyancing statutes should clarify that a deed is not invalidated by insubstantial defects. Clarifying language is set out in section 4(b)(9) of the Commission bill.

SECTION 4. Fiduciary Relationship with Creditors.

This section validates orders limiting the time within which creditors are to present claims against an estate. Prior to October 1, 1987, under section 45a-395 (then section 45-205), the court of probate routinely issued an order of limitation of time to bring claims against the estate. Under subsection (b) of section 45a-395, "if any creditor fails to exhibit his claim to the fiduciary or his attorney as directed in such order, within the time limited by such order, he shall be barred of his demand against such estate…" Section 4 of the validating act validates the limitation on claims even though the executor or administrator "failed to give notice…according to the order…" or "failed to make a sworn return…" provided the settlement of the estate commenced more than six years prior to the effective date of the act.

This provision is now archaic and inactive for several reasons. Most importantly, the underlying statute concerning claims against the estate, part viii of chapter 802b, has been superseded by part vii of chapter 802b. Under the revised statutes, the published notice to creditors does not act as a limitation on or bar to claims, but largely serves to protect a fiduciary distributing the estate. See sections 45a-354 and 45a-356. The statute revision, Public Act 89-202, was adopted because, under the rationale of the United States Supreme Court decision in Tulsa Professional Collection Services, Inc. v. Pope, 485 U.S. 478, 108 S. CT. 1340 (1988), publication of only a blanket notice of limitation violated due process rights and could not act to remove or limit a vested claim where more reasonable notice could be given.

The short of this is that the validation provision purports to validate noncompliance with an inapplicable, outmoded, and unconstitutional statute.

History and Comment: This provision dates back to section 10 of the 1933 act.

Recommendation: This provision is obsolete and is not addressed by the Commission bill.

SECTION 5. Maps or Plans.

This section validates conveyances "transferring any interest in a lot or lots shown on a filed map or plan of subdivision" in the following cases:

Subdivision (1). "The map or plan was not sealed or certified by a surveyor or was not prepared by the owner of the land".

Under section 7-31, maps may be recorded and be deemed part of the deeds referring thereto. Under that section, however, the "map shall bear the seal of the surveyor and a certification that it is substantially correct to the degree of accuracy shown thereon…" Furthermore, that section only authorizes such recording when the map was made pursuant to a survey caused to be made by a "person having an interest in land." This subdivision validates the transfer even if the map violated these section 7-31 provisions.

History and Comment: This provision, in an earlier version, dates back to section 19 of the 1965 act, Special Act 65-355. See also section 15 of Special Act 67-382, section 22 of Special Act 69-282, sections 15 and 22 of Special Act 71-102, and in approximately its current form, section 16 of Special Act 73-113.

Recommendation: The fact that the map on file does not meet statutory requirements should not invalidate the underlying conveyance. The conveyance itself should be valid as long as the description is sufficient to identify the property. The General Statutes should be amended to clarify, in the conveyance statutes, that insubstantial defects, such as that validated here, do not invalidate the conveyance itself. Proposed language is set out in section 4(b)(3) of the Commission bill.

Subdivision (2). This subdivision validates the transfer even if the "map or plan was not filed within the time limitations of any general or special law, ordinance or regulation".

This is a blanket validating provision that has no specific statutory reference. However, under section 8-25, a plan for subdivision must be filed or recorded within 90 days of the end of the appeal period and becomes "null and void" if not filed within the prescribed time. This section may also apply to the surveys and plans required for certain common interest communities which are to be recorded with the declaration. See sections 47-228 and 47-224. There may be other references.

History and Comment: This provision dates back to section 17 of the 1973 act. See comment to subdivision (1) above. Defects in maps should not invalidate underlying conveyances as long as the conveyances together with the map are adequate to identify the property being transferred. The conveyancing provisions of the General Statutes should so provide.

Recommendation:. The General Statutes should clarify that insubstantial defects, including defects in maps, do not invalidate a conveyance. Language is set out in the consolidated conveyancing revisions in section 4(b)(3) of the Commission bill.

Subdivision (3). This subdivision validates the transfer even if the "map or plan does not have endorsed thereon the approval of the commission, body or official required by a general or special law, ordinance or regulation." See section 8-26 concerning subdivision approval. This is a blanket validating provision applying where the map or plan does not meet the requirements for approval of any general or special law, ordinance or regulation.

History and Comment: This provision dates back to section 17 of the 1973 act. See comments above. Defects in a map should not invalidate a conveyance. The General Statutes should so provide.

Recommendation: The General Statutes should clarify that insubstantial defects, including defects in maps, do not invalidate a conveyance. Language is set out in the consolidated conveyancing revision in section 4(b)(3) of the Commission bill.

Subdivision (4). This subdivision validates the transfer even if the "map or plan fails in any way to comply with any requirement or requirements of any special or general law, municipal ordinance or regulation."

As with subdivisions (1) through (3), this is a general validating provision. The underlying principle of this section is to validate transfers referencing a map or plan even if the map or plan violated some statutory provision as to its preparation or approval. Given the generality of subdivision (4), it is not clear why subdivisions (1) through (3) were considered necessary.

History and Comment: This provision dates back to section 17 of the 1973 act. See comments above. Defects in a map should not invalidate a conveyance.

Recommendation: The General Statutes should clarify that insubstantial defects, including defects in maps, do not invalidate a conveyance. Proposed language is set out in the consolidated conveyancing revision in section 4(b)(3) of the Commission bill.

SECTION 6. Planning and Zoning.

This problematical section purports to validate certain actions that violate various planning and zoning provisions.

Subsections (a), (b), and (d). Subsection (a) validates a conveyance even though the interest in land comprises part of a subdivision that was not submitted for approval. See section 8-25 requiring submission of subdivisions for approval. Subsection (b) provides that use of a building is not to be deemed illegal or invalid even though the lots are not shown on an approved subdivision plan or otherwise fail to comply with "any requirement or requirements of any general or special law, ordinance or regulation." Yet subsection (d) provides that "Nothing contained in this act shall permit or validate the use of land in violation of the planning, zoning or inland-wetland regulations of a municipality." These provisions are confusing. It is not clear what noncomplying actions are validated.

History and Comment for subsections (a), (b), and (d): These provisions, which conceptually must be read together, have different derivations. Only subsection (a) is a validating provision.

Subsections (a) and (d) date back to section 18 of the 1973 act. That provision contains the concept that violation of the subdivision regulation did not invalidate the conveyance, but that this validation did not validate use of the land conveyed in violation of planning or zoning regulations.

Subsection (b) dates back to section 19 of the 1973 act. It seems intended to allow use of a building notwithstanding that the building is located in an illegal subdivision. However, the nuances of the particular provisions have varied and, in any case, the provision is less a validating act than a statement of current law. Moreover, section 8-13a already states the law applicable to such a nonconforming building, granting the building nonconforming status after three years.

Recommendation for subsections (a), (b), and (d): The conveyancing statute should be clear that a conveyance is not invalid solely because it is part of an illegal subdivision. The subsection (d) provision is unnecessary. Proposed language is set out in section 4(b)(4) of the Commission bill.

The law set out in subsection (b) is duplicated and superseded by section 8-13a and is therefore unnecessary.

Subsection (c). Subsection (c) relates to the actions of the commissions, boards, and agencies, themselves and validates their actions notwithstanding various failures to comply with "the requirement or requirements of any general or special law, ordinance or regulation governing the contents, giving, mailing, publishing, filing or recording of any notice…"

History and Comment of subsection (c): This provision, in an earlier form, dates back to section 17 of the 1967 act, Special Act 67-382. That provision initially applied only to planning and zoning commissions, in their various forms, or zoning boards of appeal. Later provisions expanded the scope to include other commissions exercising related powers. The provisions validate actions of these commissions where there was a failure to give required notice. Such errors are better addressed through a statute of limitations that allows any prejudiced party a discrete time within which to appeal.

Appeals are already governed by section 8-8 of the General Statutes and the validating act provides that matters are not validated if appeals are pending. The policy concern of the validating act could be addressed by a discrete revision of section 8-8 providing that no action may be brought to contest a decision of such a commission, notwithstanding the commission’s failure to give required notice, except within two years of the date of the decision.

Recommendation for subsection (c): Section 8-8 of the general statutes should be revised to state a limitation of action with respect to commission decisions. Such a revision is set out in section 5 of the Commission bill.

SECTION 7. Probate courts.

This section validates the following probate court actions:

Subdivision (1). Subdivision (1) validates the actions of a probate court having "jurisdiction of the estate of any nonresident decedent, in accepting jurisdiction and ordering on record a duly authenticated and exemplified copy of the will of such decedent, with a copy of the proceeding proving and establishing the same in another estate, and the appointment by such probate court of an administrator with the will annexed of such estate…" in cases in which the original (presumably out-of-state) court has (subsequently) made a finding that it has no jurisdiction and has ordered the proceedings vacated. The underlying issue is whether a finding of no jurisdiction in the out-of-state court might somehow invalidate proceedings in the Connecticut court such that legislative validation is required.

The validating provision may have been thought necessary because section 45a-288, concerning the recording of a will proved in another state, only authorizes use of the out-of-state finding in cases were the will was "proved and established out of this state by a court of competent jurisdiction…"

However, we are advised by the Probate Court Administrator that once the will has been admitted in Connecticut after due notice and hearing, and after expiration of appeal rights, the admission of the will is a final decision that is not affected by any out-of-state proceedings. The ability of the Probate Court to revoke an order is set by section 45a-128 which limits the right to revoke to 120 days from the order or decree. The grounds listed under section 45a-128 may not allow revocation based on the out-of-state proceeding. Even if they do allow revocation, that right is strictly limited by the 120 day limitation period. In short, after expiration of the 120 period, there is no need to validate the admission of the will.

(Generally, see sections 45a-287 and 45a-288 re proving of the will of a nonresident testator.)

History and Comment: This provision dates from section 6 of the 1933 act.

Recommendation: The circumstances contemplated by this provision are adequately addressed by current law. No further validation is necessary. The provision is not addressed by the Commission bill.

Subdivision (2). This subdivision validates "[a]ll orders of sale of real estate by any court of probate that are otherwise valid except that such court made an alternative order of sale by either public or private sale, instead of directing the method of such sale as required under the provisions of the general statutes".

Sales of real estate are governed by section 45a-164 and the sections that follow. Section 45a-166 provides that "The Court of Probate in ordering a sale…shall direct whether the sale shall be public or private…" Subdivision (2) validates an order of sale that fails to comply with section 45a-166.

History and Comment: This provision dates from subsection (6) of the 1933 act. Parties should be able to rely on a probate court order authorizing a sale notwithstanding a procedural irregularity in the order provided that substantive rights of third parties are not prejudiced. The defect validated by this provision is non-substantive because, under the statute, the court could have ordered either a public or a private sale. Thus the irregularity in the order ought not to be grounds for invalidating the order. The legislature should clarify the General Statute provision rather than relying on periodic validating acts.

Recommendation: Section 45a-166 should be clarified by addition of a subsection as set out in section 6 of the Commission bill.

Subdivision (3). This subdivision validates "[a]ll orders for the limitation of time for presenting claims against the estate of deceased persons heretofore made by any court of probate otherwise valid except that a notice to that effect was not properly given as required under the provisions of the general statutes".

History and Comment: This subdivision is out-of-date as well as redundant with the provision of section 4 above. See the discussion there.

Recommendation: This provision is obsolete and is not addressed by the Commission bill.

Subdivision (4). This subdivision validates a sale and conveyance of real estate pursuant to a valid order of a probate court which is conducted ten years or more after the decedent’s death, subject to certain provisions concerning rights of grantees and beneficiaries.

While section 45a-331, by inference, suggests that an estate generally ought to be closed within ten years after the testator’s death, it goes on to specify that, in cases where the settlement is delayed beyond 10 years, "the court of probate before which the same is pending may at its discretion proceed with the settlement of such estate."

Because section 45a-331 explicitly authorizes the probate court, in its discretion, to proceed with administration of an estate after 10 years, an order of the court to sell real estate after more than 10 years is explicitly authorized as an exercise of that discretion. Thus it is clear that there is no need to validate the sale. Other provisions of this subsection appear to be archaic – there should be no need to specify rights of beneficiaries with respect to the sale.

History and Comment: This provision dates back to section 9 of the 1933 act.

Recommendation: This provision is obsolete and is not addressed by the Commission bill.

SECTION 8. Financing Statements.

This section validates a financing statement, or assignment or release of a financing statement, that "omits or incorrectly states the execution date."

Financing statements are governed by Article 9 of the Uniform Commercial Code. The formal requisites of a financing statement are set out in section 42a-9-402. Assignments are governed by section 42a-9-405. Releases are governed by section 42a-9-406. Interestingly, those sections do not appear to require inclusion of the execution date. Note also, that under subsection (8) of section 42a-9-402, "A financing statement substantially complying with the requirements of this section is effective even though it contains minor errors which are not seriously misleading." Moreover, the effectiveness of the statement against third parties is governed by the recording date rather than the execution date. This provision is unnecessary.

History and Comment: This provision dates back to section 8 of the 1987 act.

Recommendation: This provision is unnecessary and is not addressed by the Commission bill.

SECTION 9. Applicability.

This section provides that the defects, omissions, and irregularities enumerated in the act are not validated if "any action, suit or proceeding has been commenced, or notice of pendency thereof has been duly recorded on or before the effective date of this act."

History and Comment: This provision dates back to section 8 of the 1985 act, Special Act 85-48. The provision clarifies the legislative intent not to validate a provision so as to effect rights of a person who has a pending claim based on the underlying defect, omission, or irregularity. As noted above, validating acts cannot generally validate in a way that removes underlying substantive rights even if an action is not yet pending. While this validating provision properly protects persons with pending actions, it is insufficient to address the rights of persons with vested rights who do not have an action pending but who, in fact, hold constitutionally protected rights. In any case, the provision is unnecessary if, as recommended by the Commission, no retroactive validating act is passed.

Recommendation: In accordance with the other recommendations that a validating act is unnecessary, this provision is superfluous.

SECTION 10. Effective date.

Recommendation: This provision is rendered unnecessary by the recommendations to delete the other provisions.

Additional Matter Addressed by the Commission Bill

The Commission review disclosed that the Validating Acts have not adequately addressed title problems created by rules against fiduciary self-dealing. The problem, as noted by Attorney L. Stewart Bohan, an expert in Connecticut title issues, is as follows:

"Standard 6.5 of the Connecticut Standards of Title discusses the Connecticut law that a conveyance by a fiduciary and by which the fiduciary derives personal profit is voidable at the instance of the person or persons to whom the fiduciary owes a duty (citing Oles v. Furlong, 134 Conn. 334 (1948) and other cases).

The rule in these cases has rendered unmarketable numerous titles resulting from such conveyances where a parent or spouse has given a power of attorney to a child or other spouse who exercises the power in his or her own favor. Such a deed is voidable and thus the title of the land conveyed is unmarketable.

The problem is that any conveyance from a fiduciary to himself or herself as grantee is voidable by virtue of that fact alone, regardless of whether consideration was paid and even though it may be apparent under all the circumstances that the principal very probably intended that such a conveyance could be made. Obviously, a well drafted power of attorney stating the powers of the fiduciary could provide for such conveyances, thus validating any such subsequent conveyance. Unfortunately, through poor drafting this intention of the principal is often not expressed; and when the problem is discovered by a title examiner, the …principal may be incompetent or deceased, making ratification of the conveyance impossible."

In the view of the Commission, the underlying rule against inappropriate fiduciary self-dealing provides an important protection against possible fiduciary abuses. The remedy, in such a case, is for the principal or other interested parties to bring an action to set aside the conveyance. However, as noted by Attorney Bohan, the same fact pattern of self-conveyancing occurs in innocent contexts where the principal and the fiduciary intend that the conveyance be valid. The Commission, therefore, recommends that the general statutes provide a liberal period for an interested party to void the conveyance. However, where a recorded conveyance has remained unchallenged for ten years, it should be presumed that the conveyance was in accord with the intent of the interested parties and the conveyance should be validated. Such a validation both respects the underlying intent of those persons interested and avoids perpetuating a cloud on title.

The Commission bill proposes language to address this problem in section 4(d).

Connecticut Validating Acts - Brief History and Legal Issues

SECTION 1. Validating Assessment Lists, Taxes, Tax Liens, Tax Rates, and Other Actions Related to Tax Levies.

SECTION 2. Validating certain declarations, deeds, and development rights with respect to common interest communities.

SECTION 3. Validating certain conveyances.

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