Millions of Americans are familiar with the role that title records play in the purchase of industrial, commercial, and private real property. However, few are aware that title records have been used since the early 1980s as a part of environmental site investigations. The impetus for this use lies in two environmental laws. The first is the Comprehensive Environmental Response & Compensation Liability Act (CERCLA) of 1980 and its reauthorization in 1986 as the Superfund Amendments & Reauthorization Act (SARA). In essence, the two laws set out a scheme by which real property owners can avoid paying cleanup costs for contaminated land if they research the history of the property they are buying to determine if surface or subsurface contamination exists. Between 1980 and 1986, environmental site investigations were not standardized and the quality of work varied greatly from one environmental consulting firm to another. However, by 1986 the investigations became more focused, and by the early 1990s, accepted standards for performing such investigations were in place. These investigations are commonly referred to as Phase I Environmental Site Assessments (ESA’s) - other phases of this process involve surface and subsurface environmental sampling and property cleanup.
Use of Recorded Land Title RecordsThe reason recorded land title records are valuable historical sources is that they provide information about past uses of a specific property by listing, in chronological order, past land owners or lessees. In addition, valuable information can be abstracted from copies of the corresponding deeds, easements, leases, liens, and contracts. A good example of this is an ESA I conducted in 1992 for a city park in Bellingham, Washington. A search of the recorded land title records revealed that the City had leased a portion of the park in the 1950s to a waste management firm for the purpose of disposing of municipal waste. Fortunately, subsequent sampling revealed that the soil and groundwater on and surrounding the park did not contain hazardous substances at regulatory levels of concern. But this is just one example of how recorded land title records have proved valuable to ESA practitioners over the years. However, the acceptance that recorded land title records might be useful as historical records was not fully accepted until the publication in 1993 of the American Society for Testing & Material’s (ASTM) Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessments. The standard consists of four elements - records review, site reconnaissance, interviews, and reporting of findings. According to the ASTM "the purpose of the records review is to obtain and review records that will help identify recognized environmental conditions in connection with the property." The ASTM has identified eight standard historical sources that can be used to delineate historical property uses. The ASTM description of the recorded land title record is as follows: The term recorded land title records means records of fee ownership, leases, land contracts, easements, liens, and other encumbrances on or off the property recorded in the place where land title records are, by law or custom, recorded for the local jurisdiction in which the property is located. Such records may be obtained from title companies or directly from the local government agency. Information about the title to the property that is recorded in a U.S. district court or any place other than where land title records are, by law or custom, recorded for the local jurisdiction in which the property is located, are not considered part of recorded land title records, because often this source will provide only names of previous owners, lessees, easement holders, etc. and little or no information about uses or occupancies of the property, but when employed in combination with another source recorded land title records may provide helpful information about uses of the property. This source cannot be the sole historical source consulted. If this source is consulted, at least one additional standard historical source must also be consulted.
Overview of Recorded Land Title Records UseIn conducting research for the original paper upon which this article is based, I conducted a survey of numerous land title associations and title insurance companies to gauge their knowledge of, and involvement with, those requesting this standard historical source. Similarly, in order to update my original paper and to reflect current practices, I re-contacted those associations and companies to find out if their attitudes about the use of recorded land title records for ESA’s had changed in any way. Therefore, the following information regarding consultants and title insurance companies is based on my original research supplemented with additional research conducted in late 1999.
Use by Environmental ConsultantsAlthough a few consultants utilized recorded land title records in the early 1980s, it wasn’t until passage of SARA in 1986 that their use became common. Moreover, with the publication of the ASTM standard in 1993, the impetus for increased and continued use of recorded land title records was guaranteed. In the early years, consultants often performed their own title searches at county assessor offices; however, that is relatively uncommon today. Most consultants contract with title insurance companies for this service. Consultants also use companies that specialize in researching historical records for use in Phase I ESAs. Among other things, these companies provide historical aerial photographs, maps, city directory searches and, often using retired title officers, reports of recorded land title records.
Service Provided by Title Insurance CompaniesMy original research in 1992 revealed that relatively few title companies provided consultants with recorded chain of title searches. Many were concerned with liability issues (for instance, if they missed a title document that showed a gas station owned a parcel of land, and gasoline was found in the groundwater, would they be held liable for cleanup costs) and an equal number were just learning of the interest in using these records for ESA purposes. Yet, companies that were providing the records to consultants seemed to have developed well thought out liability strategies. In contacting the same title companies and associations, there is relatively little change in approach, and they still share concerns regarding liability for "missed" title documents. Recorded land title records have been used to document historic real property uses since 1980. It appears, based on a survey of the title companies and current ESA literature, that this standard historical source will be an important part of the Phase I ESA process in the new millennium. It is also apparent that title companies will continue to provide environmental consultants with title history reports.