Lost Document Archeology: There’s a Statute for That
By Barry C. Brotine
Real estate law, and the title specific subset, is document based. Deeds, easements, covenants, plats, CCRs, and declarations are all physical documents that were at one time drafted and (hopefully) recorded with the local county recorder to be part of the record forever. What happens when you are presented with a uniquely rare situation wherein a document you need is lost and there are no copies?
The fact remains that not every recording can always be found. And more importantly, not every recording is perfectly safe. We can make a safe assumption that most county recorder’s records lack placement in fire and flood proof housing. This is a real threat and not without peril. Indeed, in May of 2018 there was a flood in the Yellowstone County record’s office when a sink overflowed over the weekend1. Luckily there was only minimal damage and original recordings were safe. The recorder said the county “dodged a bullet” when thinking about what damage a flood could do to the records in a county that has documents dating back to the 1880s2. Interestingly, the Yellowstone County Recorder’s office is on the fourth-floor, generally safe from a 100-year flood. Many recorder’s offices tend to be ground-level.
Another cause for concern is the Cook County Recorder of Deeds recently acknowledged that it is trying to combat the “vinegar syndrome” that is causing damage to records3. Potentially millions of records on microfilm are starting to deteriorate because a chemical reaction causes acids to eat away at acetate-based microfilm. This also can and does affect other films that are in the same housing areas. The Cook County Recorder of Deeds is well-aware of this issue and, per its website, is actively working to combat it4. But what about other counties?
More importantly, looking towards the future, what happens when servers and digital storage are attacked? What happens if an evil-doer figures out how to destroy all or certain land records and there are no copies? Not every county in Illinois has the same resources and support. There will always be the unforeseen questions of destruction by fires, floods, and other means where records are kept.
This begs the question of what happens when there is a flood or fire that damages the recordings in an Illinois county recorder’s office? Rest assured, we can thank Mrs. O’Leary and her cow5 for creating a fire and then having a solution born from the ashes. When walking through the Loop, a pass by the old Cook County Recorder’s Office is not a tourist stop of surviving buildings. The only records of land ownership remaining were called the Ante Fire Tract Books. Unfortunately, these books did not have everything needed. One year following the fire in 1872, the Illinois State Legislature passed the Burnt Records Act. In a slew of cases of litigants trying to establish proper title, the Burnt Records Act was the legal mechanism to, in effect, set the record straight. Over the course of litigation, the courts expounded that it was “not necessary to allege or provide the destruction of the evidences of the chain of title, but only ‘that the records, or any material part therof, ... had been destroyed by fire or otherwise, so that a connected chain of title couldn’t not be decided therefrom.’”6
As the law progressed, the phrase “or otherwise” grew to take into account other instances in which records were destroyed or missing by non-Chicago Fire means. The Burnt Records Act morphed into the current Destroyed Public Records Act, which provides the rule that most are familiar with: when an original document is lost or destroyed, a certified copy of the original can be recorded with the same full force and effect of the original.7 What makes this statute important is how it provides for what to do when a copy cannot be located.
The Destroyed Public Records Act has a few specific provisions that should be noted. Foremost, the petition needs to be verified.8 Particular attention in the statute itself is “a party so swearing falsely is guilty of perjury and shall be punished accordingly, and is liable in damages to any person injured by such false statement, to be recovered in a civil action in the circuit court.”9 Rightfully so, trying to create a land record that will arguably deprive another of their property should be held to the utmost standards.
Like any other real estate case, all persons named in the petition must be properly served and, like foreclosure cases, a catch-all designation is prescribed as well to be “and all who it may concern.”10 Unlike any other real estate case, this statute mirrors tax deed take notices in that it also requires the clerk to send out a “Land Title Notice” to those named as defendants.11 The notice shall be published once a week for three weeks with a least a 30-day window for the initial appearance deadline for any defendant.12
Of note, the prior Burnt Records Act required the County Recorder to be a party defendant, whereas the current incarnation does not. Nonetheless, the court’s ruling on any such proceeding under this statue “shall be binding and conclusive.”13
Much like any other legal proceeding, it is incumbent on the petitioner to provide as much proof to substantiate his or her claim. The burden of proof remains on the petitioner. Evidence regularly presented is testimony14. Yet, there are unique offers of evidence specific to a lost record.
In 1894, our Supreme Court gave us a good opening into this unique offer of evidence:
Where the deed is lost or destroyed, or is not within the power of the party to produce the same, and the record of such deed is destroyed by fire or otherwise, under the section of the statute supra, resort may be had to evidence of a twofold character: First, if an abstract of title has been made, in the ordinary course of business, prior to such loss or destruction, the party seeking to establish title may read in evidence such abstract of title, or a letterpress copy thereof; second, any copy, extracts, or minutes from such destroyed records, or from the originals of such records, which were at the date of such destruction or loss in the possession of any person then engaged in the business of making abstracts of title for others for hire.15
Though, even if petitioner presents title abstracts, minutes, notes and testimony, the decision still rests with the trier of fact’s opinion at whether a deed or claim is erroneous16.
In Ellison v. Glos, the court entertained affidavits and testimony from an employee of Chicago Title & Trust Company that copies of the original ante-fire abstracts of title were made from the original abstracts in the county recorder’s office. Clearly a title company meets the standard of one “engaged in the business of making abstracts of title for others for hire. Importantly, the Ellison Court overruled an objection that copies/abstracts of title “did not contain all that was contained in the originals from which they were made.”17 In rejecting this argument, the Ellison Court held that petitioner’s abstracts “did show all that was necessary to make out plaintiff’s chain of title” and that “[d]efendant was at liberty to offer other parts of them, if he chose to do so.” Nevertheless, “[i]t was not necessary for the plaintiff to introduce more than the nature of her case required.”18
In creating an affidavit for a lost or destroyed instrument, in addition to standard foundational elements, Ellison provides the following instructions as to what needs to be included:
That the originals of said deeds are each and all lost or destroyed, and not in the power of said complainant to produce the same; and this affiant further says that to the best of his knowledge, said originals of said deeds were not intentionally destroyed or in any manner disposed of for the purpose of introducing in evidence a copy or copies of them, or any of them, in place of said originals, or any of them.19
Now, even if a petitioner presents abundant evidence to establish title, a defendant is not left helpless without legal defenses. Certainly, Illinois courts will apply general legal defenses and evidence. Many of the decisions in this area discuss when parties acquired knowledge of possession or the other party acting is if they had true title. Even over 100 years ago, the Illinois Supreme Court paid particular attention to a petitioner’s 30-year delay in bringing a claim. “[A] long delay may be regarded as a complete bar to the relief claimed in the petition.”20 The defenses of laches21, adverse possession22, and color of title via payment of real estate taxes have all been asserted as defenses.
It is also important to note that this law is not limited to quiet/cloud on title cases. There are also instances where it is used in conjunction with foreclosing on mechanic’s liens23, probate inheritances24, proving up tax deeds25.
Of course, if the original recordings or copies are located after a pending action commenced claiming they were destroyed, it “does not render such deeds inadmissible in evidence” and it is still left with the trier of fact for final determination.26
Now after all of this analysis, it would be fair to question the need for this statute as we are digitizing most records.
However, inspection of originals are many times needed. Not every digital scan is perfectly clear, nor can it tell if there is differing color ink for add-on addendums. Also, while it might just be a bad movie plot wherein a sinister bad guy’s plan is to destroy public records of a county in Illinois, with constant notices of data breaches occurring in the news every day, this idea cannot be discarded.
For all practical purposes, copies of recorded documents are abundant and the case law behind this statute generally came to rest 80 years ago. However, the statue is still in effect for a reason and as real estate attorneys, we should all be aware of its extraordinary power.
5. This is in jest. For a definitive explanation of the Chicago Fire, See “The Great Chicago Fire and the Myth of Mrs. O’Leary’s Cow” by Richard F. Bales.
6. Pullman Car & Manufacturing Corporation v. Stroh, 349 Ill. 492, 503 (1932), quoting Gage v. Gentzel, 144, Ill. 450 (1893).
7. See 765 ILCS 45/1.
8. 765 ILCS 45/11
11. 765 ILCS 45/12
13. See 765 ILCS 45/16 (also explaining that such rulings are subject to appellate review and appropriate motions to vacate judgments for lack of service or otherwise).
14. See Happ v. Happ, 156 Ill. 183, 188 (1895), taking into evidence differing testimony amongst family members as to memory of real estate transaction from 30 years prior to trial.
15. Sternheim v. Burcky, 149 Ill. 241, 247-248 (1894). It is also interesting to note that this Court held that 4 hours is “sufficient to afford a reasonable opportunity for examination” of a title abstract. Id.
17. Ellison v Glos,, 248 Ill. 274, 278 (1910).
18. Id., quoting Glos v. Patterson, 195 Ill. 530, 533.
19. Id. 279.
20. Happ v. Happ, 156 Ill. 183, 188.
22. Stroch, 349, Ill. 492, 503.
23. Franklin Savings Bank v. Taylor, 131 Ill. 376 (1890).
24. Kotz v. Belz, 178, Ill. 434 (1899).
25. Mid-America Investment Corporation v. Larry Corporation, 14 Ill. App. 3d 765 (1st Dist. 1973).
26. Gentzel, 144 Ill. 450, 456.
Barry C. Brotine is Vice President and Chicagoland Area Underwriter for Chicago Title Insurance Company. Previously, he litigated real estate cases in both private practice and as in-house counsel for Fidelity National Title Group. He was a Senior Editor for the Chicago-Kent Law Review and obtained his undergraduate degree from the University of Illinois.