Water Right Title Updating Fundamentals of Water Right Conveyance

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Water Right Title UpdatingFundamentals of Water
Right Conveyance

• Division of Water Rights
• By Randy Tarantino
• Title Program Specialist
• Telephone [phone]
• randytarantino_at_utah.gov

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Water Right Title Resources

• Utah Code
• Title 73, Chapter 1, Sections 10-12
  http//www.le.state.ut.us/code/TITLE73/TITLE73.ht
  m
• Utah Administrative Code
• Rule R655-3 http//www.rules.utah.gov/publicat/
  code/r655/r655-003.htm
• Training Manual for Preparing a Report of Water
  Right Conveyance http//www.waterrights.utah.gov/t
  itleInfo/trainman.pdf

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Conveying Documents

• Deed
• Warranty Deed
• Quit-Claim Deed
• Water Deed, Sheriffs Deed
• Trustees Deed, etc.
• Court Decrees with conveyance language
• Quiet-Title

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Silent Conveyance
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Conveying and Reserving a Water Right
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Conveyance DocumentsPerfected Water Rights

• A perfected water right is evidenced by a decree,
  a certificate of appropriation, a diligence claim
  to the use of surface or underground water, or a
  water users claim filed in general determination
  proceedings (published in a PD book)
• A perfected water right shall be transferred by
  deed in substantially the same manner as is real
  estate
• Deeds must be signed by all grantors and
  notarized
• Deeds must be recorded in the county recorders
  office in the county in which the water is used
  and diverted, only on water deeds
• Documents must be legible and the recorders stamp
  must be visible

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The water deed can be used for perfected or
unperfected water rights
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Conveyance Documents Unperfected Water Rights

• An unperfected water right has not been perfected
• Unperfected water rights may be assigned
• Assignments must be signed by all grantors and
  notarized (recording is not necessary but it is
  recommended)

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The assignment can be used for unperfected water
rights only. The assignment accompanying the ROC
must be an original.
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Supporting Documentation
Documents that support or clarify the ROC.
Generally these documents do not convey property
unless conveying language is used within the
document

• Divorce decrees
• Affidavit
• Heir-ship
• Ownership
• Name also known as
• Individual or multiple owners interest in Water
  Right, etc.
• Contracts
• Bill of Sale
• Deeds of Trust/Trust Deeds
• Water Shares / Stock Certificates

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The Report of Water Right Conveyance (ROC)

• To update water right ownership on the records of
  the State Engineer, a Report of Water Right
  Conveyance (ROC) must be submitted by the new
  owner
• The ROC should be submitted as soon as the water
  right transfer is complete

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Chain of Title

• The conveyance documents must follow a logical
  sequence
• The first conveyance document must list the owner
  of record with the Division of Water Rights as
  grantor, assignor, etc., and all subsequent
  conveyance documents must link back in the same
  manner to the previous conveyance document
• The first grantor must be the owner of record and
  the second grantor must be the first grantee,
  etc. (exception ownership conflicts or to
  establish joint tenancy)
• Deeds must be recorded in order (exception
  warranty deed)

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Appurtenance

• A water right can be deemed to be incidental (or
  appurtenant) to land when it is by right used
  with the land for its benefit
• The land to which a water right is appurtenant is
  the authorized place of use of water as described
  in the water right
• If there is an approved change application on
  file, the authorized place of use is the place of
  use specified in the change application approval.
  The filing of a change application severs the
  water from the land at the original (heretofore)
  place of use.

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How does appurtenance affect the ROC filing
process?

• The ROC must be certified by one of the following
  professionals licensed in Utah
• Title Insurance Agent
• Attorney
• Engineer
• Land Surveyor
• The professional must submit a map which clearly
  illustrates the parcel of land to which the water
  right is appurtenant as described in the deed
• The parcel the water is appurtenant to needs to
  be highlighted or indicated on the deed, if
  multiple parcels are conveyed
• The parcel described by the deed needs to be
  highlighted or indicated on the map

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MAPPING

• The map needs to meet the mapping standards
  (R655-5-4)
• A North Arrow
• A standard scale
• All information included on the map must be
  legible
• The legal description of the property boundary
  must be delineated
• All maps must be tied to a section corner (NE,
  SE, NW, SW) of the section-township-range survey
  for the property
• Any public roads adjacent to or near the property
  should be shown on the map

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Maps that do not meet the mapping standards
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May 4, 1998

• Prior to this date only perfected water rights
  can be conveyed by appurtenance.
• Land conveyances executed on or after this date
  may convey the associated perfected or
  unperfected water right by appurtenance.

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Separation of Land Water

• A water right that is appurtenant to land shall
  pass to the grantee of the land unless the
  grantor
• Specifically reserves the water right or any part
  thereof in the land conveyance document
• Conveys part of the water right in the land
  conveyance document
• Conveys the water right in a separate conveyance
  document prior to or contemporaneously with the
  execution of the land conveyance document

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Partial Conveyances

• If the land conveyed constitutes only a portion
  of the authorized place of use for the water
  right, the amount of the appurtenant water right
  that passes to the grantee shall be proportionate
  to the conveyed portion of the authorized place
  of use
• For example if the place of use is authorized on
  two forty (40) acre tracts of land and the
  conveyed land is described as only one of the
  forty (40) acre tracts, only the amount of water
  appurtenant to the one forty (40) acre tract
  would be conveyed.

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Example
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Tenancy

• Joint Tenants have one and the same interest
  (each owns an undivided interest in the whole)
  with the right of survivorship
• A copy of the death certificate, and an Affidavit
  of Survivorship must be submitted in order for
  the surviving joint tenant to assume sole
  ownership of the water right interest
• Tenants in Common each hold an undivided interest
  in the whole without the right of survivorship
• The surviving tenant in common does not assume
  sole ownership of the water right interest upon
  the death of the other
• A deed or other conveying document will be needed
  to transfer the interest to the survivor
• If the estate of the deceased tenant in common
  goes into probate and one successor to the
  deceased is established, the water right
  ownership may be updated to the successors name
  (the ROC must be accompanied by a copy of the
  probate document)
• If an executor of the estate is established, the
  executor may deed the water rights in the name of
  the deceased (the ROC must be accompanied by
  letters of testament or probate documents which
  provide the name of the deceased and the
  executor)

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May 5, 1997

• As of May 5, 1997, ownership interest granted to
  two persons, who are designated as husband and
  wife in the granting documents, is presumed to be
  a joint tenancy interest, unless expressly
  declared in the grant to be otherwise
• Every ownership interest that does not qualify
  for the joint tenancy presumption is presumed to
  be a tenancy in common interest unless expressly
  declared in the grant to be otherwise
• Prior to this date, the tenancy is considered to
  be in common unless specified otherwise in the
  granting document

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The Affidavit

• Affidavit
• A voluntary declaration of facts, written down
  and sworn to by the declarant before an officer,
  authorized to administer oaths (notary public).
• An affidavit may be used to clarify discrepancies
  in the chain of title, such as name spelling or
  specific beneficial use conveyed, if signed by
  all owners at the time of conveyance.
• An affidavit cannot be used to convey title or
  establish joint tenancy.

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Owner of Record

• The owner of record must be exactly the same as
  the name listed on the conveyance document.
• If there are differences, the discrepancy may be
  addressed by attaching an affidavit executed by
  the appropriate individual(s), asserting that the
  persons named are one and the same.

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Trustees Deed

• Generally represents default on loan
• Preceded by a Trust Deed or Deed of Trust
• Any deed executed after the execution of the
  Trust Deed is subject to the Trustees Deed.
• Documents that may be required to support the
  Trustees Deed are the Deed of Trust, the Notice
  of Default and the Successor Trustee appointment.

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BASIC 100 ROC Checklist

• Fee
• Signature of at least one of the new owners
• Complete chain of title
• Deeds are recorded in correct counties
• Deeds are recorded in correct order
• Deeds are signed by all grantors and notarized
• ROC information matches the deeds
• Water Right Number is mentioned on the deed
• If the Water Right Number is not mentioned on the
  deed, a professional must sign the ROC, and
  submit a map establishing appurtenance
• If multiple parcels are listed on the deed, the
  parcel the water is appurtenant is highlighted on
  the deed
• Maps must match the legal description on the
  deed, and must be the same as the authorized
  place of use
• The purported conveyance actually represents 100
  of the water right or 100 of the grantors
  portion

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BASICPortion ROC Checklist

• In addition to the 100 checklist
• Only a portion of the water right is being
  conveyed
• The portion of the water right conveyed has been
  clearly defined in the conveyance document OR the
  professionals statement on the ROC is reasonable
• If the water right, or associated change
  application has more than one use and the uses to
  be conveyed have not been defined in the
  conveyance document, a professional must sign the
  ROC and specify the uses the professional may
  only define what has already been defined
• If the water right or associated change
  application has more than one owner, and their
  interest has not been defined, the owners of
  record will need to define their interest with a
  deed or affidavit in order for the uses to be
  defined
• Verify that the uses quantify
• Verify that the grantor has the interest declared
  to be conveyed

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Tips to Remember

• All documents that pertain to the chain of title
  (deed, assignment, marriage certificate, probate
  document, death certificate, affidavit, map,
  etc.) must be attached to the ROC
• The chain of title must begin with the owner of
  record on the Divisions records
• The new owner and the professional, if retained,
  must sign the ROC and submit contact information
• We cannot process a ROC without the required
  filing fee
• Review all documents associated with the water
  right (hard copy / scanned documents)
• Do a thorough title search on the property to
  assure no conflicting ownership documents exist

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County Recorders TheDivision of Water Rights

• The official office of record is the county
  recorders office (http//www.waterrights.utah.gov
  /proofs/cntyindx.html)
• The Division of Water Rights does not assure that
  title documents which may conflict with our
  ownership records do not exist
• The filing and processing of a ROC is neither an
  adjudication of water right ownership nor an
  opinion as to title or validity of the water
  right
• Update of title on the State Engineers records
  does not warrant or guarantee title to the water
  right

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The Division of Water Rights Websitewaterrights.u
tah.gov

• Report of Water Right Conveyance 100
• Report of Water Right Conveyance Portion
• Assignment of Water Right
• ROC Process Status Page
• Water Right Title Information Page
• General information
• Changes in processing guidelines
• Links to resources

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Common ROC Deficiency

• Conveyance summary incorrect or not in
  chronological order
• Missing a signature
• No fee submitted
• Mapping standards not met
• Supporting documents (missing or dont convey)
• Divorce Decrees
• Affidavit attempting to convey property or
  establish joint tenancy
• Water Right is Pending Adjudication Claim
• The process for filing a claim has not been
  completed. The water right has not been decreed
  in court, nor published in a PD Book

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Pending Adjudication Claim
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(No Transcript)
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Pending Adjudication Claim This status requires a
Diligence Claim to be filed.
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Discrepancies on the Divisions Records

• If it is believed there is a discrepancy
  associated with the water right on the Division
  records and appurtenance cannot be established,
  the Regional Office can be contacted to determine
  the action required to correct the State
  Engineers records. The correction will need to
  occur prior to filing the ROC.

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Questions?