What is a cloud on title?
A cloud on title is the everyday name for a recorded or missing item that leaves the chain of title in doubt: an unreleased deed of trust, a judgment lien, a mechanics' lien memorandum, a notice of lis pendens, or heirs never put on record. Virginia's statute on removing a cloud uses the term without defining it. A cloud stays until a recorded instrument or a court clears it.
An entry under a name, and nothing recorded after it
Start in the clerk's office, in the general index to the deed books. Every recorded instrument is indexed under the name of each party the instrument identifies as grantor, grantee or both. Look up an owner's name there and you see what has been recorded against that name, in order.
Suppose one of those entries is a deed of trust from years ago, securing a loan against the land. If the loan was paid and a certificate of satisfaction was recorded, a later entry answers the first one. If no certificate was ever recorded, the old entry just sits there. Nothing in the index says the debt was paid, because nothing was recorded to say it. That unanswered entry is the plainest example of a cloud: the record raises a question about the title that only another record, or a court, can close.
Unless otherwise provided, Virginia's recording statute sends a wide range of instruments into the same deed book once they are acknowledged as required by law: deeds, deeds of trust, deeds of release, certificates of satisfaction, quitclaim deeds, notices of lis pendens and contracts in reference to real estate. Many of the instruments that raise a question about a title, and many of those that answer one, go into that same book.
A phrase Virginia's cloud statute uses without defining
The Virginia statute that names a cloud on title uses the phrase without defining it.
Va. Code 55.1-123 speaks of a petition filed to remove a cloud on the title to real estate, and says relief is not to be denied because the complainant has only an equitable title and is out of possession. The section assumes the reader knows what a cloud is. It does not list the elements of one.
The State Corporation Commission's title insurance guide gives a practical list from the other direction, naming possible title defects: judgments, liens, unpaid real property taxes, outstanding interests in the title, and fraud or forgery in prior conveyances of the title or powers of attorney. That is a list of things that can go wrong with a title, which is close to what people mean when they say a title is clouded, without being a legal definition of the word.
Six records, or gaps in the record, that keep a title from reading clean
Each of these traces to its own statute or filing, and each is the kind of lien, encumbrance or gap in the chain of title that a title search is meant to locate.
A deed of trust with no certificate
After a secured debt is paid, the lien creditor must issue a certificate of satisfaction. Until one is recorded, the deed of trust still reads as open.A judgment lien
A money judgment becomes a lien on the debtor's real estate from the time it is recorded on the judgment lien docket in the clerk's office where the land lies.A mechanics' lien memorandum
A general contractor perfects a mechanics' lien by filing a memorandum in the clerk's office where the building is located, within the 90-day limits the statute sets.A notice of lis pendens
Notices of lis pendens are among the instruments recorded in the deed book, so a pending suit touching the land can appear in the same index as its deeds.A delinquent tax lien
Virginia has delinquent real estate tax liens recorded with the treasurer, which is the office to ask about them.A gap in the heirship record
When an owner died without a will and no list of heirs or heirship affidavit was ever recorded where the land lies, the record may not show who holds the land now.Liens and back taxes in particular turn into a closing question, and how payoffs work at a sale is taken up in selling land with a lien or back taxes. A title can also be questioned by something on the ground that the record does not show, such as an encroachment a survey turns up.
Some clear with a filing, some need a court
The fix follows the kind of cloud, and the statutes supply instruments and actions for several kinds.
- A paid deed of trust or other lien. Under Va. Code 55.1-339, the lien creditor's certificate of satisfaction operates as a release once it is signed and the affidavit the statute requires is filed or recorded with it. When and to whom the creditor must deliver it is part of how payoffs work at a sale.
- A missing heirship record. A list of heirs or an heirship affidavit, recorded where the land lies, fills that gap in the record; who may file each, and how heirs then sell, is covered in how to sell land you inherited.
- A dispute over the title itself. Some clouds end in a court. Va. Code 55.1-123 addresses petitions to remove a cloud on title, and Va. Code 8.01-179 lets a person with a subsisting interest and a right to possession ask the court to ascertain and designate the true boundary line as to adjoining owners. Line disputes are treated in boundary disputes basics, and ownership claims that rest on possession in what adverse possession is.
People sometimes ask whether a release from someone with a possible claim would settle things. Under Va. Code 55.1-363, words of release in a deed are construed as a quitclaim of all the releasor's right, title and interest, and the quitclaim deed entry explains the instrument. Whether one would actually clear a particular cloud, or whether a suit is needed instead, is an attorney's decision.
Found by the seller before listing, or by the buyer's search after
A cloud on the record is there to be found during a sale. What changes is who finds it, and how much time is left on the contract when they do.
The SCC's guide tells buyers they should have a title search performed, and that search is where a recorded cloud is likely to surface. Whether a buyer's title insurance policy would cover or except a particular item is the insurer's call, and depends on the policy's own terms.
A seller who knows of an old unreleased loan, an unsettled estate or a pending suit touching the land can start on it before a buyer's examiner writes it up as an exception. Clearing the record takes filings, and sometimes a court, and neither runs on a closing date's schedule.
A title exception turned up on land you want to sell?
Send the county and what the title report or search flagged. Lowell will talk through how it affects a listing and point you to the attorney-side questions before a contract is signed. No cost, no obligation.
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Questions this raises
Does someone have to be living on the land to ask a court to remove a cloud on title?
Not under Va. Code 55.1-123. When a petition is filed to remove a cloud on the title to real estate, the statute says relief is not to be denied because the complainant has only an equitable title and is out of possession. Whether a particular owner has grounds for that petition, or whether a corrective instrument would do instead, is a question for an attorney.
Does a clouded title stop me from listing land for sale?
Not by itself. The pressure arrives later in the sale: a buyer's title search is likely to find the item, and a lender or title insurer may want it cleared before closing. How and when it can be cleared is a question for an attorney, ideally before a contract sets a settlement date.
Where this page's facts come from
Every rule, office and figure above traces to one of these. Rules change; check the office before you act on one.
- Va. Code 55.1-123, petition to remove a cloud on title Virginia General Assembly
- Va. Code 17.1-249, general indexes to deed books Virginia General Assembly
- Va. Code 17.1-227, the deed book Virginia General Assembly
- Va. Code 55.1-339, certificates of satisfaction Virginia General Assembly
- Va. Code 8.01-458, judgment lien on real estate Virginia General Assembly
- Va. Code 43-4, perfecting a general contractor's mechanics' lien Virginia General Assembly
- Va. Code 58.1-3930, delinquent tax liens recorded with the treasurer Virginia General Assembly
- Va. Code 64.2-509, list of heirs Virginia General Assembly
- Va. Code 64.2-510, affidavit of heirs Virginia General Assembly
- Va. Code 8.01-179, action to establish a boundary line Virginia General Assembly
- Va. Code 55.1-363, words of release construed as a quitclaim Virginia General Assembly
- Virginia Title Insurance Guide State Corporation Commission, Bureau of Insurance