Town clerks across Vermont are worried that a legal dispute over access to municipal land records could force them to abandon public health protocols meant to slow the spread of COVID-19.
Many Vermont realtors are reporting a sustained increase in demand for properties. But a company that facilitates real estate transactions says the pandemic has in some cases made it more difficult to access the land records needed to complete property sales.
The Connecticut Attorneys Title Insurance Company filed a lawsuit against town clerks across Vermont last month, and it’s asking a judge to force those clerks to return to pre-pandemic office hours.
Clerks, however, say the suit threatens the health of them, their staffs, and their communities.
“They are making an attempt to basically drop a nuke on communities across the state just because of their sense of personal entitlement,” Montpelier City Clerk John Odum said.
It’s been a grueling year for South Burlington City Clerk Donna Kinville. Between mail-in elections, local ballot measures and maintaining day-to-day operations in the midst of a pandemic, Kinville says her job has consumed her life.
“It does take a cumulative effect,” Kinville said. “I just had my birthday this week, and [my staff] bought me some lavender sleeping stuff, because I’m not sleeping.”
So when Kinville found out last month that she’s been named in a lawsuit filed by an insurance company, she took it personally.
Kinville said she first ran for the city clerk position 20 years ago because she wanted to help people.
“That’s why you become a clerk," she said. "And then just it all of a sudden out of the blue, get accused of something that you’ve worked so hard to make sure doesn’t happen, it really hits close to the heart."
Kinville is one of nine clerks named in a lawsuit filed by Connecticut Attorneys Title Insurance Company, also known as CATIC.
CATIC is headquartered in Connecticut, but it's licensed to operate in 19 states, including Vermont. The company's suit claims that pandemic protocols instituted by some clerks have impeded timely access to municipal land records.
“Access to the land records isn’t just critical for attorneys, it’s also critical for appraisers, surveyors, realtors, and property owners who just need access to the records to conduct property transactions,” said Andy Mikell, a Williston resident who manages CATIC’s operations in Vermont.
Mikell said town and city clerks are the sole gatekeepers to those critical documents.
“And if they are closed or reduce their hours or impose unreasonable restrictions, anybody seeking access is left without access,” Mikell said.
Without that access, Mikell said, the machinery of the real estate sector can grind to a halt.
The lawsuit has drawn fierce backlash from municipal clerks in Vermont and beyond.
While the lawsuit names only nine town and city clerks, Odum said a ruling in CATIC’s favor could force all municipalities to abide by the open hours mandate CATIC is seeking.
Odum said there’s good reason clerks have restricted in-person access to municipal offices.
“It’s the same reason why restaurants are closed," Odum said. "It’s the same reason why we’re all wearing masks, and that’s because we’re trying to limit the places and the degree with which the virus can spread during a pandemic."
Odum says most clerks are “bending over backwards” to provide access to land records, whether that’s through online portals or in-person appointments.
“To suggest that access literally means the ways to which they had become accustomed prior to the pandemic is completely — it’s not genuine, it’s not legitimate, it’s not a serious argument," Odum said.
Mikell said CATIC’s lawsuit isn’t meant to be a broadside against the hard work clerks have done during the pandemic. He added that CATIC is grateful for the majority of clerks who have managed to keep access flowing.
But Mikell said CATIC has spent months trying to address its grievances through the Legislature, Vermont League of Cities and Towns and Vermont Municipal Clerks’ and Treasurers’ Association.
In June, after hearing testimony from the Title Insurers’ Association, all five members of the Senate Committee on Government Operations sent a letter to the Scott administration, saying that lack of access to land records “has already caused real-world pain.”
The committee encouraged Gov. Phil Scott to amend his executive order accordingly.
“Our suggestion is that the guidance should require all town clerks to be open to 50% of normal time by June 17th and 100% by June 24th,” the committee wrote.
Secretary of Commerce Lindsay Kurrle said this week that amended guidance to town clerks requires them “to make records available while adhering with mandatory health and safety requirements, including occupancy limits (50% fire safety) and physical distancing (1 person per 100 square feet) at a minimum.”
But Mikell said some jurisdictions are still limiting records searches to one a day, or limiting appointments to 30-minute blocks, even though typical title searches can take three hours or more.
“And then there are some clerks that say, ‘We’ll allow searching: Get here at 6:30 in the morning, and you need to leave by 8 o’clock,'” he said. “Litigation was the last recourse.”
Bobbi Brimblecombe, the town clerk in Marshfield, isn’t named in the suit. But she said she’s still worried about what a ruling in CATIC’s favor would mean for her and her staff.
“Clerks are working extraordinary hours and taking extraordinary measures to get these records, make them available,” Brimblecombe said. “It’s just not as convenient as it was when the attorney could walk in at any time, but we’re all making concessions.”
Brimblecombe said CATIC should make some concessions too.
“It offends me to think the financial risk of this company should outweigh the health risk to my community,” she said.
A judge will hear arguments in the case at a hearing later this week.
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