HOUSE BILL 2363
DOES THIS REALLY DO WHAT IT SAYS IT DOES?!?

There are two ways to read this short, seemingly simple bill. The less likely reading is the less damaging to democracy, private property and individual liberty. The more probable reading of its slippery phrasing makes HB 2363 one that legalizes the theft of property by certain favored classes - attorneys, title insurers and escrow agents. 

The bill states that when presented with “an instrument that affects title to or an interest in real property” and upon payment of the fees ordinarily required, “a county clerk shall accept the instrument for recordation, without regard to the title of the instrument, if one of the following people presents the instrument…” The magic phrase here, of course, is the italicized “without regard to the title of the instrument.” Whatever does that mean? 

It could mean, without regard to whether the instrument itself is entitled as a Quitclaim Deed, or a Statutory Warranty Deed, or possesses some other, less common “title.” Or it could mean the county clerk has to record the instrument, irregardless of whether it transfers title in real property to someone with no right or claim to that property.  

The problem with the theory that the central phrase refers only to the nature or name of the instrument to be recorded is that the county clerks ALREADY will process such instruments, whether denominated Quitclaim or Warranty Deed or otherwise. This theory, though the less frightening, is also the less likely. It achieves zero change in existing law and procedure. And that makes the other theory, bizarre as it seems, the more likely. 

The problem with the legalized theft theory is that HB 2363 does not overtly state it creates this new power in lawyers, insurers and escrows irregardless of other provisions of law - like those governing the attaching of liens and the right of a mistreated property owner to sue for what is called slander upon title - or for misuse of legal process. HB 2363 does not expressly remove these protections: it merely creates a new power and procedure that appears to be in direct conflict with them. Would HB 2363 serve to protect an attorney, insurer or escrow who takes or transfers a property under it, when the rightful owner sues? Who knows? But why create such a legal morass. Tell us we’re wrong, that there is a third interpretation of this bill that we have missed that makes some sort of sense. But till we see that interpretation, and are convinced it honestly makes sense, we are left with the conclusion this bill legalizes theft by preferred classes. That is not law. It is law’s opposite. 

Ed Johnston 541-336-1233