Minnesota Legislature
HF 2746
1st Engrossment - 84th Legislature (2005 - 2006) Posted on 12/15/2009 12:00am
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A bill for an act
relating to real property; providing a procedure for conveying title to real
property held by a custodian; proposing coding for new law in Minnesota
Statutes, chapter 501B.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:
Section 1.
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[501B.561] CERTIFICATE OF CUSTODIANSHIP.
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new text begin Subdivision 1. new text end
new text begin Contents of certificate. new text end
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(a) A custodian or the owner of property
held in a custodianship, at any time after execution or creation of a custodianship
instrument, may execute a certificate of custodianship that sets forth less than all of
the provisions of the custodial instrument and any amendments to the instrument. The
certificate of custodianship may be used for purposes of selling, conveying, pledging,
mortgaging, leasing, or transferring title to any interest in real or personal property. The
certificate of custodianship must include:
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(1) the name of the custodianship, if one is given;
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(2) the date of the custodianship instrument;
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(3) the name of each owner of property held in the custodianship;
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(4) the name of each original custodian;
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(5) the name and address of each custodian empowered to act under the custodianship
instrument at the time of execution of the certificate;
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(6) the following statement: "The custodians are authorized by the instrument to
sell, convey, pledge, mortgage, lease, or transfer title to any interest in real or personal
property, except as limited by the following: (if none, so indicate)";
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(7) any other custodianship provisions the custodians or owners of property held
in the custodianship include; and
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(8) a statement as to whether the custodianship instrument has terminated or been
revoked.
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(b) The certificate of custodianship must be upon the representation of the custodians
or the owners of property held in the custodianship that the statements contained in the
certificate of custodianship are true and correct and that there are no other provisions
in the custodianship instrument or amendments to it that limit the powers of the
custodianship to sell, convey, pledge, mortgage, lease, or transfer title to interests in real
or personal property. The signature of the custodians or the owners of property held in
the custodianship must be under oath before a notary public or other official authorized
to administer oaths.
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new text begin Subd. 2. new text end
new text begin Effect. new text end
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A certificate of custodianship executed under subdivision 1 may
be recorded in the office of the county recorder for any county, or filed with the office
of the registrar of titles with respect to registered land described in the certificate of
custodianship or any attachment to it. When it is recorded or filed in a county where real
property is situated, or in the case of personal property, when it is presented to a third party,
the certificate of custodianship serves to document the existence of the custodianship, the
identity of the custodians, the powers of the custodians and any limitations on those
powers, and other matters the certificate of custodianship sets out, as though the full
custodianship instrument had been recorded, filed, or presented. Until amended or
revoked under subdivision 3, or until the full custodianship instrument is recorded, filed,
or presented, a certificate of custodianship is prima facie proof as to the matters contained
in it, and any party may rely upon the continued effectiveness of the certificate.
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new text begin Subd. 3. new text end
new text begin Amendment or revocation. new text end
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(a) Amendment or revocation of a certificate
of custodianship may be made only by a written instrument executed by a custodian or an
owner of property held in the custodianship. Amendment or revocation of a certificate
of custodianship is not effective as to a party unless that party has actual notice of the
amendment or revocation.
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(b) For purposes of this subdivision, "actual notice" means that a written instrument
of amendment or revocation has been received by the party or, in the case of real property,
that either a written instrument of amendment or revocation has been received by the party
or that a written instrument of amendment or revocation containing the legal description
of the real property has been recorded in the office of the county recorder or filed in the
office of the registrar of titles where the real property is situated.
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new text begin Subd. 4. new text end
new text begin Application. new text end
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(a) Subdivisions 1 to 3 are effective August 1, 2006, but
apply to custodianship instruments whenever created or executed.
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(b) Subdivisions 1 to 3 apply only to custodianships established under a federal
law or under a statute of this or any other state. Subdivisions 1 to 3 do not apply to
custodianships governed by chapter 527 or by the similar laws of another state.
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Sec. 2.
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[501B.571] AFFIDAVIT OF CUSTODIAN IN REAL PROPERTY
TRANSACTIONS.
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new text begin Subdivision 1. new text end
new text begin Form of affidavit for custodianship. new text end
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An affidavit of a custodian
or of custodians of a custodianship in support of a real property transaction may be
substantially in the following form:
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STATE OF MINNESOTA ) new text end |
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AFFIDAVIT OF CUSTODIAN new text end |
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ss. new text end |
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COUNTY OF ) new text end |
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.........................., being first duly sworn on oath says that:
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1. Affiant is the custodian (one of the custodians) named in that certain Certificate of
Custodianship (or Custodianship Instrument)
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filed for record ......., ...., as Document No. ..... (or in Book ..... of ............, Page
......) in the Office of the (County Recorder/Registrar of Titles) of ........... County,
Minnesota,
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OR
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to which this Affidavit is attached,
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executed by Affiant or another custodian or by the owner of the property that is held
in the custodianship described in the Certificate of Custodianship (or set forth in
the Custodianship Instrument), and which relates to real property in .......... County,
Minnesota, legally described as follows:
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.......................................................... ...............................................................
............................................................... ...............................................................
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(If more space is needed, continue on back or on attachment.)
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2. The name(s) and address(es) of the custodian(s) empowered by the Custodian
Instrument to act at the time of the execution of this Affidavit are as follows:
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......................................................... ..............................................................
..............................................................
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3. The custodian(s) who have executed that certain instrument relating to the real
property described above between ........................, as custodian(s) and ...........................,
dated .........., ....:
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(i) are empowered by the provisions of the custodianship to sell, convey, pledge,
mortgage, lease, or transfer title to any interest in real property held in custodianship; and
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(ii) are the requisite number of custodians required by the provisions of the
custodianship to execute and deliver such an instrument.
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4. The custodianship has not terminated and has not been revoked.
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- OR -
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4. The custodianship has terminated (or has been revoked). The execution and
delivery of the instrument described in paragraph 3 has been made pursuant to the
provisions of the custodianship.
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5. There has been no amendment to the custodianship which limits the power of
custodian(s) to execute and deliver the instrument described in paragraph 3.
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6. The custodianship is not supervised by any court.
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- OR -
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6. The custodianship is supervised by the ............ Court of .............. County,
................ All necessary approval has been obtained from the court for the custodian(s) to
execute and deliver the instrument described in paragraph 3.
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7. Affiant does not have actual knowledge of any facts indicating that the
custodianship is invalid.
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............................. new text end |
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Subscribed and sworn to before me new text end |
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, Affiant new text end |
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this .... day of ........., ..... new text end |
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.................................................... new text end |
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Notary Stamp or Seal new text end |
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Signature of Notary Public or new text end |
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Other Official new text end |
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This instrument was drafted by: new text end |
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..................................................... new text end |
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..................................................... new text end |
new text begin Subd. 2. new text end
new text begin Effect. new text end
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An affidavit by the custodian or custodians under subdivision 1
is proof that:
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(1) the custodianship described in the affidavit is a valid custodianship;
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(2) either the custodianship has not terminated or been revoked or, if the
custodianship has terminated or been revoked, the conveyance described in the affidavit
is made pursuant to the provisions of the custodianship;
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(3) the powers granted the custodian or custodians extend to the real property
described in the affidavit or attachment to the affidavit;
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(4) no amendment to the custodianship has been made limiting the power of the
custodian or custodians to sell, convey, pledge, mortgage, lease, or transfer title to the real
property described in the affidavit or attachment to the affidavit, if any;
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(5) the requisite number of custodians have executed and delivered the instrument of
conveyance described in the affidavit; and
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(6) any necessary court approval of the transaction has been obtained.
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The proof is conclusive as to any party relying on the affidavit, except a party dealing
directly with the custodian or custodians who has actual knowledge of facts to the contrary.
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new text begin Subd. 3. new text end
new text begin Recording or filing. new text end
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An Affidavit of Custodian or Custodians under
subdivision 1 may be recorded in the office of the county recorder for any county, or
filed with the office of the registrar of titles for any county with respect to registered
land described in the affidavit, or in the Certificate of Custodianship or Custodianship
Instrument referred to in the affidavit, and may be recorded or filed as a separate
document or combined with or attached to an original or certified copy of a Certificate of
Custodianship or Custodianship Instrument, and recorded or filed as one document.
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new text begin Subd. 4. new text end
new text begin Application. new text end
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(a) Subdivisions 1 to 3 are effective August 1, 2006, but
apply to custodianship instruments whenever created or executed.
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(b) Subdivisions 1 to 3 apply only to custodianships established under a federal
law or under a statute of this or any other state. Subdivisions 1 to 3 do not apply to
custodianships governed by chapter 527 or by the similar laws of another state.
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