Title, Trusts, Transfers and Terrorists: Legislation That Could Affect Your Practice
By Attorneys in substantially all practice areas handle or review deeds, leases and contracts or clients in distress about matters (family law, trespassers, condemnations, estates, etc.) involving real estate from time to time. The 2025-2026 Legislative Session (still in process) has much to consider.
See program recording from Return to the Vault (March 4, 2026), “What’s New, What’s Next: NC Legislation Every Real Estate Attorney Should Know” and related PowerPoint slides for details, legislation, and resources.
To access the recording, navigate to this link, log in to your NCBA account and click the + next to “RTTV Series.” Then click on “What’s New, What’s Next, NC Legislation Every Real Estate Attorney Should Know 3.4.26.”
Invitation to Participate or Provide Input to the Real Property Section Legislative Committee
Attorneys are the subject matter experts on any legislation. Input from practitioners about the actual effects of potential legislation, costs to the system and public and possible improvements to protect the intended parties without unnecessarily overburdening legitimate interests and transactions are desperately needed at all times! Ideally, comments shared prior to and during the drafting phase (pre-enactment) are best. But technical corrections are often a possibility once legislation is enacted and put into practice.
Though legislation is on the North Carolina General Assembly website, often the online version is far from the updated draft currently under consideration but not yet introduced. And once a bill starts to move, it can literally become law overnight. So time is of the essence as soon as a bill discussion begins.
Warning: Most firms will need to consider updating their engagement letters, disclosures to clients, affidavits and indemnities from clients and others, and intake or information gathering procedures to adapt and comply. Your files will need to be documented with proof that you reasonably relied on information provided to complete your own due diligence and reporting requirements.
Caution: Many of these are not centered on a real estate closing, but on any transfer or ownership of real property in North Carolina.
A Few Highlights — What’s New?
Detailed reporting to FinCEN under the FinCEN Anti-Money Laundering Rule for Residential Cash conveyances will be required. But watch out: “residential” is not just a residence and “cash” is not just cash! This reporting applies (subject to limited exceptions) for any conveyance that is:
- to an entity or trust (corporation, LLC, business trust, nonprofit, or other entity or trust, with just a few exceptions)
- of any North Carolina real estate that may include any component that is 1-4 family residential (mixed use, duplex, condominium, etc.)
- in which no financing from an institutional lender subject to anti-money laundering and SARS reporting (i.e., report required for seller financing, private money lender or cash sale)
- whether or not a traditional closing is involved (i.e., business or estate planning, contribution to your favorite charity, among others).
Equitable Distribution is not waived in a conveyance but must be by separate instrument.
Other changes have been enacted regarding marital rights, elective shares, joint tenancies, and community property elections.
The NC Legislature is actively reviewing the NC State Bar Grievance Committee procedures at upcoming meetings.
Wills executed, witnessed, and notarized on paper can now be stored electronically by attorneys (indefinitely unless disclosed otherwise, and subject to tamper-proof security) and produced to the clerk (with the attorney’s certification) at the client’s death, subject to certain risks and conditions. But North Carolina has not adopted electronic wills.
What’s Still On the Table
Deed / Title Fraud legislation involves a multitude of questions to address prevention, post-recording quick notifications, curative procedures, and criminal penalties. The goal is to be laser-focused on the victim and the fraudster with effective, clear means of protection, but not to overly burden the system for legitimate transactions (with the inevitable costs and delays). Who should be required to provide additional proof to record? What should that proof be? How should “suspicious” or “questionable” instruments be handled, and how are they identified? What expedited procedure should apply, especially if the fraudster is attempting a reconveyance or is not locatable?
Redaction or “shielding” of public records regarding judicial and law enforcement officers (and possibly others) in various possible public records. Many questions need to be addressed to focus in on the issue and determine if effective protection, balancing the burden on the official and all public agencies: Which officials? Which records? For how long?
Prohibitions are being considered against purchase by any “adversarial foreign government” or affiliated entity (as defined under varying regulations and statutes) of any agricultural land or any property near (within 25 miles, for example) of any military installation or facility under its oversight or control. (This would be substantially all of this state.)
Restraints on wholesaling of residential properties are the subject of at least three different possible protocols, ostensibly to address affordable housing concerns:
- Requiring a disclaimer in any contract by a “solicitor” directly with an owner, allowing the owner to rescind the contract and retain the earnest money, and requiring the “solicitor” to be licensed with the NC Real Estate Commission. (This is most familiar in a “flipping” transaction, but is not so limited by the proposed bill.)
- Prohibition on any “wholesaler” (or affiliates) from owning over a certain number (say, 100) of homes for rental across the state.
- At the federal level, limiting the availability of federal financing and depreciation benefits to wholesalers.
These and many more are highlighted in the PowerPoint and the one-hour Return to the Vault presentation.
Any questions, concerns or comments can be shared with Nancy Ferguson.