Montana Real Estate Practices

Attorney Involvement

Please describe any requirements under applicable state law for attorney, abstractor or other special professional involvement, for example, in the search, examination, opinion of title, signing, closing, disbursement, recording, preparation of documents, and/or policy-issuance.

Title Insurers may use the search and exam of either its title insurance producer or an approved attorney. As to closings, use of attorneys varies. They do the document preparation.

Cancellation/Commitment Fee

Does your state permit or require a cancellation fee or commitment fee upon cancellation?

The fee is allowed. Stewart's rate filing includes a cancellation fee.

Certificate of Release (of Mortgage)

If anyone other than the lender (such as a title agent, settlement agent, underwriter or attorney) has the authority to release the security instrument, please describe.

Method of releasing a mortgage by a personal representative, assignee, attorney in fact, heirs of mortgagee, and foreign administrators or executors is set out in M.C.A. §71-1-211.  Title insurers or producers can reconvey if it fully paid the debt after proper notice per M.C.A. §§71-1-307, -308.

Deeds

Please describe the kinds of deeds that are customary for commercial and residential transactions.  Please describe the kinds of deeds that are generally not insurable.

A grant deed or warranty deed must contain the word "grant" in order to give warranties. Warranty deeds are usually used for commercial and residential transactions. Quit claim deeds can be used.

Joinder of Spouses

If a non-title holding spouse is required to join in the execution of a deed or a security instrument, please describe.  Any analogous rights, such as those in a civil union or equivalent, should also be addressed. 

If a declaration of homestead is recorded both spouses must sign even if one has no record interest.

Mortgage Tax

Is there a mortgage tax in your state?  If yes, is it uniform across the state or does it vary?  If it is uniform, please describe.  

None.

Payment Customs

Who customarily pays for:
(a) Owner’s Policy?
(b) Transfer Tax & Recording Fee?
(c) Survey Charges?
(d) Closing/Settlement Fees?

Seller normally pays for the owner's policy. Buyer normally pays for recording. Surveys and closing fees are negotiable.

Policy Countersignatures

What kinds of countersignatures, if any, are required to issue the policy? 

Policy must be executed by an officer, employee, or duly authorized representative of a title insurance producer.

Real Estate Taxes

Please describe the general tax year, due dates, and delinquency dates, including lien dates and payment cycle.

Property taxes become a lien on January 1 of each year. Personal property taxes on property worth over $10,000 can become a lien on real property in some cases. First half of taxes are due by 11/30 of each year and second half by 5/31. Tax sales start on the last Monday of June and for the following three weeks. There is a 36 month redemption period. 

Search and Examination Fees

Is it permissible and/or customary to charge a separate search and/or examination fee, and under what circumstances?  If your jurisdiction is all-inclusive, please state that.

Rates must be all inclusive of the total charge.

Search Requirements

Is there a minimum period of time for a title search required: (a) by state law, (b) pursuant to marketable record title acts, or (c) by any other applicable title examination standards (e.g., state bar association)?  Please respond to each category.  If a minimum search period exists for any category, please state it.

There is no state law minimum search.  There is no marketable record title act, so a complete search is required back to patent.

Security Instruments (Deed of Trust vs. Mortgage)

Please describe the customary and permissible form(s) of security instruments used in your state. 

Who can be listed as the trustee on the Deed of Trust (e.g., residency and/or natural person requirements, etc.)? Can an underwriter or title agent be designated as the trustee, and, if so, is it customary?

Small Tract Financing Act allows a deed of trust to be used on tracts of 40 acres or less. Mortgages can also be used. The trustee of a deed of trust can be a member of the bar, bank, trust company, savings & loan, or a title insurer or agent. It is customary to use a title company.

Standard Exceptions and Requirements

Please identify the standard exceptions and requirements that are customarily used in your state.

Included are some standard exceptions/requirements. They are basically the same except for minor variations in the tax exceptions.

-Defects, liens, encumbrances, adverse claims or other matters, if any, created, first appearing in the public records or attaching subsequent to the effective date hereof but prior to the date the proposed insured acquires for value of record the estate or interest or mortgage thereon covered by this Commitment.

-Taxes or assessments which are not shown as existing liens by the records of any taxing authority that levies taxes or assessments on real property or by the public records. Proceedings by a public agency, which may result in taxes or assessments, or notices of such proceedings, whether or not shown by the records of such agency or by public record.

-Any facts, rights, interest or claims which are not shown by the public records but which could be ascertained by an inspection of the land or by making inquiry of persons in possession thereof.

-Easements, liens or encumbrances, or claims thereof, which are not shown by the public records.

-Discrepancies, conflicts in boundary lines, shortage in area, encroachments, or any other facts which a correct survey would disclose, and which are not shown by the public records.

-(a) Unpatented mining claims; (b) reservations or exceptions in patents or in Acts authoring the issuance thereof; (c) water rights, claims or title to water; ditch rights; (d) any right, title or interest in any sand and gravel and/or minerals including access to and from to extract minerals, mineral rights, or related matters, including, but not limited to oil, gas, coal and other hydrocarbons; whether or not the matters excepted under (a), (b), (c) or (d) are shown by the public records.

-Any lien or right to a lien, for services, labor or material heretofore or hereafter furnished, imposed by law and not shown by the public records.

-Any service, installation or connection charge for any and all utilities, including, but not limited to sewer, gas, water or electricity.

-County road rights-of-way, not recorded and indexed as a conveyance of record in the office of the Clerk and Recorder pursuant to Title 70, Chapter 21, M.C.A, including, but not limited to any right of the Public and the County of Lake to use and occupy those certain roads and trails.

-No liability is assumed for errors, omissions or changes of assessed valuations or amount of taxes assessed by any state, county, city or federal taxing or assessing authority.

State-specific Policy Variations

If there are state-specific changes to the provisions in the ALTA policies (e.g., Arbitration, Minerals), please describe.

None.

Title Insurance Form and Filing Regulations

Please describe the form and/or rate filing requirements, if any, related to policies and endorsements.  Please describe any applicable rating bureau. 

Forms and fees must be filed and approved by the Insurance Commissioner.

Transfer Taxes

Is there a transfer tax in your state? If yes, is it uniform across the state or does it vary?  If it is uniform, please describe.

None.

Usury

Is usury coverage available?

Stewart has two forms of usury endorsements filed.  Parties may agree in writing to the payment of any rate of interest that does not exceed the greater of 15% or an amount that is 6 percentage points per year above the prime rate published by the federal reserve system in its statistical release H.15 Selected Interest Rates for bank prime loans dated 3 business days prior to the execution of the agreement. M.C.A. §31-1-107.  The above provision does not apply to “regulated lenders,” defined in M.C.A. §31-1-111.  A regulated lender, except for a deferred deposit loan licensee, title loan licensee, or consumer loan licensee, is exempt from all limitations on the rate of interest that it may charge and is exempt from the operation and effect of all usury statutes.  M.C.A. §31-1-111.

Withholding Taxes

What are your state’s requirements, if any, with regard to withholding proceeds from a sale, similar to but not including FIRPTA?

None.

Witness Requirements

Are witnesses required on a deed or security instrument?  If so, please describe.

Witnesses are not required except for a corporate deed which must be either acknowledged or witnessed.