If there’s a discrepancy between the deed and the tax records, which do I go by in taking a listing?

QUESTION: I’ve been approached about taking a listing. I’ve done a little research and have discovered that there’s a difference in the names on the deed and those listed as owners in the tax records/GIS. Which do I go by in filling out the listing agreement?

ANSWER: In this particular situation, we advise you not to rely on either source without doing some additional investigation. As a general rule, you should have all persons sign the listing agreement who will be needed to sign a deed conveying the property. In most situations, ownership of the property is clear. Here, however, the discrepancy between the deed and the tax records is a “red flag” that we believe a reasonably prudent broker would be expected to look into further because it indicates that a person whose name is on the deed may no longer own the property. For example, a person on the deed may have died. If that’s the case, you need to find out what happened to their interest in the property. Did it pass by law to a surviving spouse or a joint tenant with right of survivorship? Did it pass to an heir or heirs under the Intestate Succession Act (the controlling law when someone dies without a will) or to someone named under the deceased owner’s will? In such cases, the taxing authority may have been notified of the change in ownership, but there most likely is not a new deed in the name of the person who acquired the deceased owner’s interest because the transfer took place by operation of law or under a will rather than by a deed. But we don’t think you should simply assume that the tax records are correct. You should consider checking with the Clerk’s office to see if there was an estate administered in the name of a deceased owner. If there is, a review of the estate file may provide the “missing link” in what real estate lawyers refer to as “the chain of title.”

If there’s not an easy answer, you—or the person who has asked you to take the listing—should enlist the services of a real estate attorney to help determine ownership of the property. You need to take reasonable care to get this right before you take the listing. If the property is sold and you’ve “missed” someone who will be needed to sign the deed, it may jeopardize the transaction and your commission, and you could possibly find yourself defending a Real Estate Commission complaint alleging that you failed under the particular facts to exercise reasonable care to determine who owned the property.

Release Date: 08/30/2018