Why Municipalities Should Convey Real Property by Quitclaim Deed

Municipalities own real estate that they convey to third parties in a variety of situations. Most often this occurs in the context of conveying property the town acquired because of unpaid property taxes back to the taxpayer once the past due amounts have been paid in full, but also in the context of municipal-owned property in industrial parks and other property suitable for development. Almost always a municipal quitclaim deed is the appropriate instrument for conveying tax acquired property. A municipal quitclaim deed releases any right, title, or interest the municipality may have in the described property to the identified grantee, without any covenants or guarantees of title. Put another way, such deeds do not contain any representation or warranty by the municipality as to whether or not it actually has title to the described property or whether or not the property is subject to any lien or encumbrance. Muni-quitclaim deeds are truly the “buyer beware” of deed forms.

Nonetheless buyers of property and other parties acquiring title to real property from a municipality often ask for a warranty deed or a quitclaim with covenant deed. The rationale these buyers offer is that they, unlike taxpayers paying back taxes, are paying real money for the property and they are entitled to know that the municipality has title and that it is free and clear of liens and encumbrances. These buyers are in effect asking the municipality to perform the buyer’s due diligence and search title to the property. For a number of reasons, this burden switching is inappropriate and improperly places the burden of insuring title on the municipalities’ residents.

While municipal quitclaim deeds offer nothing in the way of promises to the buyer, other forms of deeds—for illustration purposes, warranty deeds and quitclaim deeds with covenant—provide a number of such promises. A warranty deed is the seller’s promise that it has the interest in the property it is purporting to convey to the buyer; that there are no encumbrances on the property, such as mortgages, liens, or easements, other than those referenced in the deed; and that the buyer’s possession of the property will not be interrupted by someone with a superior interest in the property. Most importantly, the seller promises that its title to the property is free of defects, and that it will defend the buyer’s possession of the property against the claims of “all persons,” even with respect to defects or claims that may have arisen years before the seller acquired the property. By giving a warranty deed, then, a seller takes on potential liability not just for what the seller has done during his or her period of ownership, but also for claims arising well before he or she acquired the property, of which it likely has no knowledge. Quitclaim deeds with covenant offer similar promises, with the exception that the guarantee of no defects or claims covers only that period of the seller’s ownership.

A municipality often acquires property without having performed a complete title examination and is thus unable to know whether it has title to the property, whether such title is subject to any liens or encumbrances, and whether others have claims to the property. Only by a thorough title examination is the municipality able to answer these questions and to meaningfully evaluate what such promises might entail for potential future liability. Even though a tax foreclosure provides that a municipality owns a property free and clear of any encumbrances, the title standards require either a five- or fifteen-year waiting period for clean title, depending on when the period of redemption expired.

Even though the possibility of selling a property for more money exists when a deed other than a quitclaim is given, absent an action to quiet title, the risks outweigh the benefits.

Neighborhood Cats

“The phrase ‘domestic cats’ is an oxymoron.” —George Will

Municipalities must deal with a wide variety of issues involving animals, from dangerous dogs to animals on highways, alive and dead. Funds for the Animal Control Officer (ACO) are limited due to budget constraints and the ACO may not be experienced in dealing with certain issues, such as the problems involving feral or so-called neighborhood cats. 

First, though, some brief background information on neighborhood cats generally.

Although a rough number, the Humane Society of the United States (HSUS) estimates that about 85% of owned cats are spayed or neutered, while only 2% of unowned or semi-owned cats (what we refer to as “neighborhood cats”) are spayed or neutered. These estimates also attribute about 80% of all kittens born each year to neighborhood cats.

There is, however, a way to spay or neuter these neighborhood cats (and vaccinate them), reducing the number of neighborhood cats born each year and, in turn, reducing their overall number over time. In “Return to Field” (RTF) programs, healthy, unowned cats are sterilized, ear tipped, vaccinated, and put back where they are found. Part of the rationale behind this approach is that these cats know how to survive on their own, so there is no need to euthanize them to avoid future suffering. This approach also helps reduce the financial and emotional burdens on shelters in having to euthanize healthy cats.

Similar programs, such as “Trap, Neuter, and Release” (TNR), which also includes spaying, are widely used throughout the country and offer another humane way to manage neighborhood cats. Should you decide to pursue a TNR program, you may find that there are resources in your community that are ready, willing, and able to help—animal rescue groups, wildlife agencies, and maybe just individual volunteers. The trapping part needs to be managed diligently—checking traps no less than once a day, and more often in cold or hot weather, is important to ensuring a humane process.

The HSUS guide Managing Community Cats, A Guide for Municipal Leaders contains a lot of useful information about which neighborhood cat population control methods have worked, those that have not worked, and where you might find funding in the form of grants or otherwise to help support your RTF/TNR efforts.

The Neighborhood Cats TNR Handbook contains detailed information about how to set up a TNR program, with potential funding sources found on page 151. 

As Mark Twain once said: “If man could be crossed with the cat it would improve the man, but it would deteriorate the cat.”

Recent New Hampshire Supreme Court Case Places Limits on Planning Boards’ Site Review Authority

In Trustees of Dartmouth College v. Town of Hanover, _____ N.H. _____ (2018), decided November 6, 2018, the New Hampshire Supreme Court reversed the decision of the trial court, which had upheld the Hanover Planning Board’s decision denying Dartmouth College’s proposed construction of a new Indoor Practice Facility (“IPF”). Dartmouth sought approval for a 69,860 square foot IPF within the College’s existing athletic complex located in Hanover’s Institutional Zoning District (in which athletic facilities were an allowed use). The Planning Board, in a 4-1 decision, denied the site plan application on the grounds that it: (1) did not conform with the Hanover Master Plan; (2) negatively impacted abutters, the neighborhood, and others; and (3) did not promote the harmonious and aesthetically pleasing development of the town. The trial court upheld the Planning Board’s decision, finding that it was not unreasonable or unlawful.

The Supreme Court, however, overturned the Superior Court’s decision, finding that a reasonable person could not have reached the same decision based on the evidence before the Planning Board. The Supreme Court held that the Planning Board members had improperly denied the College’s site plan application based upon ad hoc reasoning characterized by conclusory statements and personal feelings unsupported by the evidence.

The case provides a number of issues for planning board members to consider when they are reviewing a site plan application, including the following:

1. Though a planning board is entitled to rely in part on its members’ own judgment and experience when acting upon a site plan application, the decision cannot be based solely upon personal opinions or “vague concerns” of its members.
2. Although on appeal a planning board’s factual findings are considered prima facie lawful and unreasonable, personal opinions and vague concerns are not factfinding entitled to deference.
3. A planning board cannot deny a proposed use simply because its members do not feel that the use is appropriate, where the use is allowed in the applicable zoning district.
4. A planning board cannot deny an application based upon general concerns if specific standards in the zoning ordinance addressing those concerns have been met. (For example, the Hanover Planning Board had denied the proposed IPF on the ground that it was too large and imposing, despite the building’s compliance with the zoning ordinance’s specific provisions relating to a structure’s height and size.)
5. If a use is permitted by the zoning ordinance, it cannot be barred by the site review process unless the use would create unusual public health, safety, or welfare concerns.

The case signals a subtle shift in the New Hampshire Supreme Court in favor of individual property rights (versus a planning board’s regulatory authority). This does not mean that a planning board cannot impose conditions that are reasonably designed to promote the public health, safety, or welfare. But where a proposed project meets the objective requirements of the zoning ordinance, a planning board must base a denial of that project upon specific facts showing a substantial risk of harm to the public health, safety, or welfare.

New Governor, New Era for State/Municipal Partnership

Governor Janet T. Mills is being inaugurated today as Maine’s first female Governor. Municipal officials and leaders throughout the state should expect a more positive relationship between the Governor and the State of Maine and local municipal government during this new administration. As everyone is well aware, despite having been the former Mayor of Waterville, Governor Paul LePage had a very testy and unproductive relationship with municipalities throughout his tenure as Governor. He was generally opposed to revenue sharing for municipalities and went out of his way to foist responsibility onto municipalities for programs and the costs of those programs for which the State historically has taken responsibility. Governor Mills, in her interview with the Maine Municipal Association which occurred prior to the election, made it abundantly clear that she welcomes the support and advice of municipalities and fully intends to restore that relationship and stop the process of shunting costs onto local property tax payers. Since Governor Mills worked her way up through the ranks of local and state politics before becoming Attorney General and finally Governor, she has a keen understanding of what local officials go through and will likely be far more sensitive to those concerns than the previous administration.