Uniform Laws Update

News from the ULC 2021 Annual Meeting

Uniform Laws Update provides information on uniform and model state laws in development as they apply to property, trust, and estate matters. The editors of Probate & Property welcome information and suggestions from readers.

The Uniform Law Commission (ULC) held its 130th Annual Meeting in Madison, Wisconsin, in July. Seven new uniform acts were approved, and four other draft acts were read and critiqued. The ULC also announced new projects: four drafting committees and two study committees. This issue of Uniform Laws Update will summarize the acts and projects involving real property, trust, and estate law. For a complete report from the 2021 annual meeting, visit the “News” page at www.uniformlaws.org.

Uniform Community Property Disposition at Death Act (UCPDDA).

Community property acquired by a married couple retains its character as community property even when the couple relocates to reside in a noncommunity property state. This result creates potential distribution problems at the death of the first spouse and also creates potential estate planning opportunities. A probate court or trustee in a non-community property state may not recognize the character of community property in a decedent’s estate, which could lead to a misallocation of the decedent’s property or disputes between a surviving spouse and the decedent’s other heirs. This act is an update of a 1971 act, adopted by many jurisdictions, which applies only to probate proceedings. The UCPDDA also addresses non-probate transfers of community property and provides clear default rules to ensure the proper disposition of community property from any estate, in any jurisdiction. It is recommended for adoption by all non–community property states.

Uniform Cohabitants’ Economic Remedies Act (UCERA).

The rate of nonmarital cohabitation within the United States is increasing rapidly. Today, states have no consistent approach for addressing whether and how cohabitants can enforce contract and equitable claims against each other when the relationship ends. The UCERA provides clear guidance for courts adjudicating these claims but does not create any new legal status for cohabitants. In most instances, the act defers to other state laws governing contracts and claims between individuals. The UCERA enables cohabitants to exercise the same rights as noncohabiting citizens to contract and to maintain breach-of-contract and equitable claims based on “contributions to the relationship.” Those contributions can include domestic services like cooking, cleaning, performing household maintenance, and caring for the other cohabitant or the cohabitant’s child or relative but do not include sexual relations. The UCERA will help ensure more consistent treatment of cohabitants’ claims in state courts without subjecting claimants to any additional hurdles that would not be imposed on litigants who live apart.

Amendments to the Uniform Common Interest Ownership Act (UCIOA).

The UCIOA is a comprehensive statute governing three forms of common ownership of real estate: condominiums, homeowners associations, and cooperatives. This set of amendments addresses recent legal developments concerning, among other issues, retained rights by a developer, mandatory versus default rules, limited common elements, and termination of common interest communities.

Another new act does not directly involve the law of property but has broad implications for legal practitioners, among others. The Uniform Personal Data Protection Act (UPDPA) is a comprehensive privacy law, similar in scope to the laws adopted in the European Union and a few US states but with an innovative new standard for protecting personal data. Privacy issues are controversial because the stakes are high for both consumers and businesses. The UPDPA recognizes that the collection and use of personal data are important features of our modern economy and outlines compatible, incompatible, and prohibited data practices based on a consumer’s expectations. The act provides a reasonable level of consumer protection without incurring the compliance and regulatory costs associated with the first-generation statutes governing personal data.

A new drafting committee on Mortgage Modifications will draft a uniform or model act to standardize state laws concerning whether modifying the terms of a mortgage requires recording an instrument to document changes to the previously recorded mortgage. The act also will clarify when a modified mortgage retains its priority over subsequent creditors to secure repayment of the debt.

A drafting committee on Restrictive Covenants in Deeds will draft a new uniform law governing the removal of discriminatory restrictive covenants from recorded property records. Many older deeds contain restrictions based on race or religion. Though discriminatory restrictions are unenforceable, some property owners want the offensive provisions expunged entirely. States have begun to accommodate those requests but without a consistent process. The American Land Title Association proposed this project to draft a uniform state law providing a standard process for the removal of discriminatory restrictions without affecting the integrity of a property’s chain of title.

Another new drafting committee will revise the Uniform Determination of Death Act. This widely adopted act, originally approved in 1980, provides a simple two-prong test to determine when an individual is legally dead. A physician must verify that an individual has sustained either (1) irreversible cessation of circulatory and respiratory functions or (2) irreversible cessation of all functions of the entire brain, including the brain stem. The second prong that defines brain death needs updating to ensure conformity with recent advances in medical science and evolving standards of practice.

Last year, a New Jersey federal judge’s husband and son were shot at their front door by a disgruntled former litigant who targeted the judge’s family by getting her home address from public records. In the wake of this horrific act of violence, states are beginning to pass legislation allowing the redaction of personal information of judges and other public officials from public records. There is no consistent approach, however. A new study committee on Redaction of Personal Information from Public Records will determine whether a uniform or model act on the subject is feasible and the scope of any potential drafting project.

All ULC drafting committees are open for participation by any interested party. More information about these and other uniform acts and drafting projects is available at www. uniformlaws.org.

Uniform Laws Update Editor: Benjamin Orzeske, Chief Counsel, Uniform Law Commission, 111 N. Wabash Avenue, Suite 1010, Chicago, IL 60602.