a.
Title plant. A participating abstractor shall own and
maintain, or lease and use, a title plant including tract indices for each
county in which that participating abstractor prepares abstracts for division
purposes, unless exempt under paragraph 9.7(1)
"c" or
authorized under paragraph 9.7(1)
"d. " Each of the tract
indices shall be designated to encompass a geographical area of not more than
one block in the case of platted real estate, nor more than one section in the
case of unplatted real estate. The tract indices shall include a reference to
all of the instruments affecting real estate recorded in the office of the
county recorder, and the tract indices shall commence not less than 40 years
prior to the effective date of the abstractor's participation in the title
guaranty program. A government-maintained and -controlled database is not
considered a title plant for division purposes.
b.
Intent to build title
plant. The division may authorize an abstractor that is building or
that intends to build a title plant to prepare abstracts for use by the
division, upon review of the following:
(1)
The abstractor's business plan;
(2)
Evidence that a title plant will be built for a specific county or counties
within three years;
(3) A time line
for completion of the title plant; and
(4) A description of the applicant's
abstracting experience.
c.
Grandfathered attorney. A
participating attorney who has provided abstracts continuously from November
12, 1986, to the date of application to provide abstracts for division
purposes, either personally or through persons under the participating
attorney's supervision and control, shall be exempt from the requirements to
own or lease a title plant. This exemption is unique to the participating
attorney, is nontransferable, and terminates at such time as the participating
attorney ceases providing abstracts for division purposes or upon the death or
incapacity of the participating attorney.
d.
Title plant waivers. The
division recognizes the 40-year title plant as the preferred method of
providing title evidence for the purpose of issuing commitments and
certificates. The division must weigh the benefits of the traditional title
plant with other alternatives to ensure buyers and lenders high quality of
certificates throughout the state, rapid service, and a competitive price. Iowa
Code section
16.91(5)
"b" allows the division board to waive the up-to-date title
plant requirements under certain conditions.
(1) General provisions. The division board
shall consider an application for a title plant waiver upon submission by an
attorney or an abstractor.
(2)
Submission of application. The division shall provide an application form at
the office of the division and on the division's Web site. An applicant must
submit an application in writing to the attention of the division director at
the office of the division.
(3)
Content of application. The applicant must provide, at a minimum, the following
information:
1. The name, business address,
e-mail address, and telephone number of the applicant;
2. The applicant's business plan;
3. The county or counties in which the
applicant intends to abstract;
4. A
description of the applicant's abstracting experience;
5. Samples of abstracts prepared by the
applicant;
6. A history of any
professional disciplinary action against the applicant;
7. Professional references in support of the
applicant;
8. The relevant facts
that the applicant believes would justify a waiver under
9.7(1)
"d"(5) and 9.7(1)
"d"(6)"4";
and
9. A signed statement from the
applicant attesting to the accuracy of the facts provided in the
application.
(4)
Notification and response.
1. The division
shall notify the applicant upon receipt of a complete application.
2. The division shall publish notice of an
application on the division's Web site within 7 calendar days of receipt of a
complete application. A copy of the application and supporting documents will
be provided to any interested person upon request.
3. The Iowa State Bar Association and Iowa
Land Title Association shall be provided notice of an application. Provision of
the notice to the identified associations is not a requirement for the division
board to consider the application, and failure to inform an interested person
of an application shall not void or otherwise nullify any action or decision of
the division board.
4. If a
complete application is received at least 90 days prior to the next scheduled
division board meeting, the application shall be placed on the agenda for that
division board meeting. The division shall receive public comments up to 45
calendar days prior to that division board meeting.
(5) Criteria for title plant waiver. Pursuant
to Iowa Code section
16.91(5)
"b, " the division board may issue a ruling waiving the title
plant requirement set forth in Iowa Code section
16.91(5)
"a "(2) if the board finds the following:
1. The title plant requirement imposes a
hardship to the applicant; and
2.
The waiver is:
* Clearly in the public interest; or
* Absolutely necessary to ensure availability of certificates
throughout the state.
3. For
purposes of paragraph 9.7(1)
"d," "hardship" means
deprivation, suffering, adversity, or long-term adverse financial impact in
complying with the title plant requirement that is more than minimal when
considering all the circumstances.
4. For purposes of paragraph
9.7(1)
"d, " "public interest" means that which is beneficial
to the public as a whole, including but not limited to increasing competition
among abstractors, encouraging the use of certificates throughout the state,
making certificates more competitive than out-of-state title insurance,
increasing the division's market share, improving the quality of land titles,
and protecting consumers.
(6) Board meeting and ruling.
1. The review of a waiver application is not
a contested case proceeding.
2. The
division director or designee shall review an application and its supporting
documentation. The division director shall present to the division board a
proposed written ruling. The division board shall adopt, amend or reject the
proposed written ruling. If the proposed written ruling is rejected, the
division board shall instruct the division director to prepare an alternative
written ruling to be considered at a subsequent division board
meeting.
3. The written ruling
shall summarize the relevant facts and the basis for granting or denying the
waiver. The written ruling may specify the scope and duration of the waiver and
any restrictions, conditions, or requirements.
4. The final decision on whether the
circumstances justify the granting of a waiver shall be made at the sole
discretion of the division board upon consideration of all relevant factors.
Relevant factors to be considered include, but are not limited to, the division
director's proposed written ruling, the facts and circumstances set out in the
application, any history of professional disciplinary action against the
applicant, adverse claims made against the applicant, prior waiver withdrawal
actions against the participating attorney or participating abstractor, public
comments, the professional knowledge and expertise of the board members and
division staff, and any other resources available to the entire division board.
The division board shall give considerable weight to an applicant's experience
abstracting under the supervision of a participating abstractor or
participating attorney with whom the applicant has had a close working
relationship or with whom the applicant is a partner or associate. The division
board shall also give considerable weight to a recommendation from a
participating abstractor or participating attorney who supervised the
applicant's abstracting for a period of two years or more and who attests in
writing or in person before the division board regarding the applicant's
ability to abstract. Consideration should be afforded to rulings on prior
waiver requests, but the division board shall not be bound by such rulings. The
division board may limit a waiver as to county, or transaction type, or
both.
5. The written ruling shall
be mailed to the applicant within 7 days of its issuance.
6. The decision of the division board shall
be final agency action, and all appeals shall be filed with the Iowa District
Court for Polk County.
(7) Conditions. A waiver is unique to the
recipient and is nontransferable. A waiver recipient shall be accountable to
the division for abstracts prepared for division purposes. The division may
require a waiver recipient to provide a guarantee, performance bond, or other
form of indemnification, as assurance for abstracts prepared by the waiver
recipient on behalf of the division. The division may review the waiver
recipient annually and may require a renewal, modification or addition to any
required assurances. Retention of a waiver is dependent on the applicant's
meeting the requirements for a participant in rule
265-9.6 (16). If the
waiver recipient fails to meet the terms of the recipient's participation
agreement, the waiver may be withdrawn by the division board.
(8) Withdrawal of a waiver. A waiver issued
by the division board may be withdrawn or modified if, after public notice and
division board meeting, the division board issues a written ruling finding any
of the following:
1. That the waiver recipient
knowingly withheld or misrepresented material facts relied upon by the division
board in granting the waiver; or
2.
That the waiver recipient failed to comply with all conditions contained in the
written ruling; or
3. That the
abstracts prepared by the waiver recipient fail to meet the abstract minimum
standards adopted by the division; or
4. That the division has revoked the waiver
recipient's authorization to provide services on behalf of the division
pursuant to subrule 9.6(14).
The decision of the division board shall be final agency
action, and all appeals shall be filed with the Iowa District Court for Polk
County.
(9)
Public availability. Applications for waivers and written rulings are public
records under Iowa Code chapter 22. Some applications or written rulings may
contain information that the division is authorized or required to keep
confidential. The division may redact confidential information from
applications or written rulings prior to public inspection or dissemination.