THE OKLAHOMA BAR JOURNAL 40 | JUNE 2024 These Title Examination Standards, which are “persuasive” (as explained later), guide the title examiners of this state – especially attorneys – to ensure a smooth flow of commerce by providing a uniform approach to title examination. Like in the “Goldilocks” story, these uniform standards need to be neither too hot nor too cold, neither too hard nor too soft and (specifically for Title Examination Standards) neither too strict nor too loose but “just right.” The goal is to avoid either extreme: the flyspecker (or nitpicker) who requires a quiet title lawsuit to confirm every title versus the blind examiner who has never found a title they didn’t like! The Title Examination Standards Committee has adopted the following policy statement explaining the goals of their standards: “for the purposes of educating and guiding title examination attorneys.” AUTHORITY The authority behind the reliance on these Oklahoma standards to identify a “marketable record title” has been established by Oklahoma legislation, court rulings and contract terms. The phrase “marketable record title” is defined by the Oklahoma Title Examination Standards in Section 1.1 “Marketable Title Defined,” which provides: A marketable title is one free from apparent defects, grave doubts and litigious uncertainty, and consists of both legal and equitable title fairly deducible of record. ... Comment: Marketable title is a title free of adverse claims, liens and defects that are apparent from the record. Any objections should be reasonable and not based on speculation. For purposes of this definition, words describing the quality of title such as perfect, merchantable, marketable and good, mean one and the same thing. All Oklahoma Supreme Court opinions are binding and must be followed by all trial court judges, meaning that such decisions are “precedent” (binding). However, an opinion of one of the intermediate three-judge panels of the Oklahoma Court of Civil Appeals is only “persuasive” authority for trial judges while making their decisions and is not “binding” (provides guidance but is not precedent).6 The Oklahoma Supreme Court has accepted Oklahoma’s set of standards as being “persuasive”: While [the Oklahoma] Title Examination Standards are not binding upon this Court, by reason of the research and careful study prior to their adoption and by reason of their general acceptance among members of the bar of this state since their adoption, we deem such Title Examination Standards and the annotations cited in support thereof to be persuasive.7 The Legislature has approved the use of these standards when dealing with oil and gas title as provided in the Production Revenue Standards Act: 2. a. Where such proceeds [of production] are not paid because the title thereto is not marketable, such proceeds shall earn interest at the rate of (i) six percent (6%) per annum to be compounded annually for time periods prior to November 1, 2018, and (ii) the prime interest rate as reported in the Wall Street Journal for time periods on or after November 1, 2018, calculated from the end of the month in which such production was sold until such time as the title to such interest becomes marketable or the holder has received an acceptable affidavit of death and heirship in conformity with Section 67 of Title 16 of the Oklahoma Statutes, or as set forth in subparagraph b of this paragraph. Marketability of title shall be determined in accordance with the then current title examination standards of the Oklahoma Bar Association.8 However, it should be noted that the Oklahoma attorney general has opined: It is therefore, the opinion of the Attorney General that where there is a conflict between a title examination standard promulgated by the Oklahoma Bar Association and the Oklahoma Statutes, the statutory provisions set out by the Legislature shall prevail.9 PROCEDURE FOR THE ADOPTION OF TITLE EXAMINATION STANDARDS IN OKLAHOMA In Oklahoma, under current procedures, new standards or amended standards are drafted, discussed and adopted each year through a series of nine monthly meetings held by the Title Examination Standards Committee, which are held from January to September. Prior to this year, these proposals were published in the Oklahoma Bar Journal in October and then Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff.
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