Update (March 27, 2019): Minnesota Litigator has profiled many great Minnesota litigators (see the compilation at the bottom of the post) for several years.
No one compares with Kevin Dunlevy of Beisel & Dunlevy PA.
For sure, there are literally thousands of excellent Minnesota litigators (many of whom we have profiled, many more that we have admired but have not had the opportunity to profile). It is not clear, however, that there is any other Minnesota litigator (or lawyer) with deeper expertise, mastery, and knowledge of a discrete subject matter area of Minnesota law than Kevin Dunlevy has developed over more than 30 years in the law of Minnesota real property.
LEVENTHAL pllc has retained Mr. Dunlevy as an expert and has referred real estate matters to Beisel & Dunlevy PA. This profile is not “paid advertising.” (None of our profiles are.) LEVENTHAL pllc has no financial interest in Beisel & Dunlevy PA. In other words, this testimonial is “the real deal,” a genuine strong recommendation from someone who knows what he’s talking about. If you have a legal problem that concerns Minnesota real property, why would you not consult with Kevin Dunlevy?
ML: In a “first” for Minnesota litigator, we’re having a repeat interviewee: Kevin Dunlevy. In our 2014 interview, we only scratched the surface of your expertise. Let’s dig deeper.
But, let’s start at the most superficial level: help our readers with a very basic real property issue in Minnesota: abstract vs. Torrens real property records. What are these? Why do we have two systems? What difference does it make?
Dunlevy: Okay. All real property in Minnesota starts out as the abstract property. That means in order to check the title, historically you had to go to the courthouse and dig through all the documents back to the time of statehood to figure out who owns the property and what the liens are and so on.
The other method is to check the Torrens certificate of title. About half of properties in Hennepin and Ramsey Counties are in the Torrens system. And large percentages of Saint Louis County, Anoka County, and other metro area counties, are Torrens as well.
For a property to become Torrens, somebody has to go to court and get the judge to say the magic words, that it’s Torrens and then has “certificated title.” It is a certificate similar to the motor vehicles certificates. You can look at that certificate and see what bank has a lien on your car or who has title to the car.
The Torrens system was invented by Sir Richard Robert Torrens. He worked in a ship’s registry office in Australia in the 1800s. Ships have certificates of title, just cars. So you can look at the certificate of title and you can see a ship’s mortgage recorded on that certificate of title, and who has title to the ship.
Sir Torrens thought, “A ship’s certificate of title makes a lot of sense for real estate titles. Instead of having to dig through those dusty records at the courthouse to figure out the title, we could just look at this one piece of paper, a certificate of title.”
Most of the English-speaking world except for the U.S. uses the Torrens system: Canada, Great Britain, and, I believe, India.
I met with the professor that was involved in deciding whether India should go with Torrens in India back in about the 1990s and I’m pretty sure India went with Torrens. India’s title is based on the British government survey at the time of partition with Pakistan. Whoever occupied the real property at the time of the survey, was deemed the owner.
A lot of the former communist countries are Torrens because they don’t have title records from before communism. In many of the former Soviet Union countries, property records were all destroyed. Poland retained its title records and I think Hungary, the Czech and Slovak Republics probably kept their records as well.
I do know Poland kept its pre-communism title records because I taught real estate law in Poland in October 2018. Poland had to go through an extensive litigation process to determine who owned the property after the government divested. The litigation was between those who claimed title through the historic title records and those who occupied the properties during communism. In Ukraine, where I taught real estate law in 2013, the government still owns all the commercial and agricultural property and the government only divested the residential property. So, in Ukraine if you lived in an apartment at time communism fell, you simply took ownership when the country gave up ownership of that real estate. Occupancy was the source of title for residential property, like in India.
An attorney from the Hennepin County Examiner of Titles office, Justin Hall, went to Ukraine for about 10 years to set up the Torrens system for Ukraine. Before I went to Ukraine, I called Justin to ask about the Torrens system in Ukraine. I spoke with him on Skype and he was working in Afghanistan with its real estate title system.
So that’s a long explanation but essentially the Torrens system is judicially certified title. The court has issued a certificate of title. Otherwise it’s abstract.
There is a movement afoot to make the whole state Torrens based on the Canadian model. That would eliminate duplicate recording systems, simplify title examinations and save costs to the public.
Canada became Torrens first by having the property in every new plat declared Torrens. And after that, every time a deed was recorded, the property became Torrens. The country set aside an assurance fund, which is like insurance, to protect property owners from title problems because of the non-judicial process, compared to the judicial process previously used in Canada.
ML: If I am a real property owner in Minnesota whose property is in the abstract recording system rather than Torrens, under what circumstances would I want to hire someone and to have the property switched from abstract to Torrens?
Dunlevy: There would be two main reasons to do it, maybe three. The first one is if you’ve got some high value property, like the IDS Center. You may want to register title under the Torrens system because there’s more certainty of title.
I spent quite a few years of legal practice working on title registration of a paper mill up into Duluth. It included 8,000 parcels and it eventually ended up all one certificate of title.
After high value property, the second reason to register title is a murky title problem you don’t know how to fix.
If it’s a black and white title problem, you can do a quiet title action and that’s going to be okay. Somebody can review the record, and understand the issue quickly and easily. If it’s a murky title problem, though, if you want to have more certainty that the problems have been eliminated, you can Torrens the property and that effectively buries the old title problems.
ML: Is it possible to estimate the cost of that?
Dunlevy: Registering title is more than a simple quiet title action. A simple quiet title action may be $2,500 to $3,000, without publication of a summons. A Torrens registration is usually about $5,000 to $7,500.
ML: I would think that the smallest disputes that you deal with as a real property litigation expert are boundary line disputes?
Dunlevy: Actually, those are kind of some of the thorniest problems because the people inevitably hate each other and they’re fighting over really inconsequential pieces of property. That’s very common. Sometimes it’s hard to get people to think rationally about a one-foot strip of grass.
In commercial situations that kind of behavior is less common. And it’s less common to have boundary line issues with commercial property because there usually have been surveys, title companies, and lawyers involved.
Boundary line issues are common around water. Part of the reason goes back to the 1800s when the federal government sent out surveyors. They surveyed the whole state into one-mile squares. They did this using wagon wheels for measurement and magnetic compasses for direction. Minnesota is close to the zero magnetic variation line, which is the variation between magnetic north and true north, but there were three or more degrees of variation at the time of the US Government Survey.
Another problem with the 1850s surveys is that the wagon wheels worked fairly well to measure distance on the open prairie but when the surveyors got into forests, lakes and rivers, the wagon wheels did not work so well. So, for example, Lake Minnetonka has lots of boundary line issues because it’s a very irregular shaped lake and all the survey issues from back to the 1850s are still there. It’s similar with White Bear Lake. There are whole subdivisions in which every house crosses the boundary onto the neighboring property.
ML: If I’m a homeowner and I have a property on a lake front and the lake recedes, do I own more property?
Dunlevy: Maybe, maybe not. That’s called accretions and relictions. Relictions occur when the water recedes and accretion is when the ground builds up, like on a river bend, where sediment might deposit and result in more land on a river’s edge.
The first question is whether the water body is part of a navigable waterway. If it’s a navigable waterway the federal government owns the land underneath the water, whether it’s a lake or a river. Lake Superior is a navigable waterway, of course. So the federal government owns to the harbor line. Inside the harbor line, it’s under state jurisdiction. In Duluth, all of the slips in which ships are docked end at the harbor line. Other navigable waterways include Saint Croix River and the Mississippi River.
The next question is: was the property platted into the water? Because ownership of platted property line ends at the edge of the plat, and if the plat does not extend into the water, then you don’t own the land between the edge of the plat and the waterline.
If the property is unplatted, it has a metes and bounds description. With a metes and bounds legal description there’s a better chance if you would own that newly uncovered land at the water’s edge.
ML: You gave us a list of your practice areas and it includes work in bankruptcy lien avoidance defense, bankruptcy stay relief motions, bankruptcy plan objections, and bankruptcy adversary proceedings. Those areas don’t necessarily include real property issues. And I think of you as a real property expert. Are you involved in those kinds of matters when they involve real property?