Amendment to Ohio Court Rule May Prevent Access to Domestic Relations Records

January 26th, 2016

An amendment to Rule 44 of the Rules of Superintendence for the Courts of Ohio went into effect on January 1, 2016. The amendment appears to have complicated real estate title negatively, at least in the short run, and not by intention. The amendment was to add a provision, subpart (C)(2)(h), which would restrict public access, including title examiners, to certain information by making them an exception to being considered "case documents." The purpose behind the rule was to prevent the public from accessing sensitive personal information while still allowing public access to other "case documents" that are unlikely to contain personal information. "Case documents" by definition in Rule 44 include items like court decrees and orders, which were generally available for public access under Rule 45. The examination of these records is critical to determine the treatment of the title held by or previously held by one or more of the spouses who are the subject of these orders. A review of these documents can determine if the property is subject to an order of sale, a particular award to one party or the other, or potentially subject to a lien (though any judgment lien of a party should be reduced to a Certificate of Judgment to properly be considered to attach to the property). It has been reported by at least one underwriter and one title examiner that some clerks in the domestic relations courts are excluding title examiners, and the public generally, from accessing the necessary court orders and decrees. This unintended consequence, and one that should not be considered a reasonable interpretation of the amendment, will impair the ability to convey clear title where either a current or prior owner was the subject of a domestic relations proceeding during their ownership. For current owners who are trying to sell their property but are going through a domestic relations proceeding, a title agent will likely need to request certified copies of information the court clerk is unwilling to provide in order to avoid taking exceptions to title which are insurmountable in closing the transaction.

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