NDCC Rules and Regulations

NDCC Rules of Bailors and Bailees

• 60-01-06 Gratuitous Deposit:

  • Definition: A deposit where the depositary receives no compensation, only possession.

  • Standard of Care: Must use slight care to preserve the item.

  • Notes: There is no payment or benefit to the depositary.

• 60-01-08 Care Required by Gratuitous Depositary:

  • Applies to the 60-01-06 situation.

  • Standard of Care: Slight care, which is a low duty, but not zero.

• 60-01-10 Storage / Depositary for Hire:

  • A non-gratuitous deposit equates to a depositary for hire.

  • Notes: This involves a paid arrangement.

• 60-01-11 Care Required by Depositary for Hire:

  • Applies to the 60-01-10 situation.

  • Standard of Care: Must use ordinary care.

  • Notes: Higher duty because of compensation.

• 60-01-24 Presumption of Gross Negligence or Willfulness:

  • If an item is lost/injured, and the depositary refuses to share information or lies about it.

  • Presumption: It is presumed to be willful or gross negligence.

  • Notes: This shifts the burden to the depositary.

• 60-01-34 Finder = Depositary for Hire:

  • A finder is not obligated to take charge, but if they do, they become a depositary for hire.

  • Standard of Care: Must use ordinary care.

  • Can assume ownership if unclaimed after 2 years with law enforcement.

  • Notes: This encourages finders to act responsibly.

• 60-01-35 Finder Must Notify Owner:

  • The finder must notify the owner if known or suspected.

  • If not, liable for damages and loses any reward or compensation.

  • Notes: Encourages diligence and honesty.

• 60-01-37 Compensation and Reward to Finder:

  • A finder is entitled to compensation for necessary expenses and services related to preservation.

  • But only if the finder complies with other obligations (e.g., notice).

NDCC § 12.1-23-04 – Theft of Property Lost, Mislaid, or Delivered by Mistake

• A person commits theft when they knowingly retain or dispose of property that:

  • Was lost or mislaid, or

  • Was delivered by mistake (e.g., to the wrong person or in the wrong amount),

  • and they intend to deprive the owner and fail to take readily available and reasonable steps to return it.

• Elements of Theft:

  • Property is lost or mislaid:

    • Knowledge Required: Person knows the property belongs to someone else and was lost/mislaid.

    • Intent Required: Intent to deprive the rightful owner.

    • Obligation: Must take readily available and reasonable steps to return it.

    • Result If Not Met: Guilty of theft.

  • Property is delivered by mistake:

    • Knowledge Required: Person knows the delivery was a mistake.

    • Intent Required: Intent to deprive the rightful owner.

    • Obligation: Must take readily available and reasonable steps to return it.

    • Result If Not Met: Guilty of theft.

NDCC Adverse Possession Statutes

• 28-01-04:

  • No action to recover real property unless the plaintiff or predecessor possessed it within 20 years.

  • Key Points: 20-year statute of limitations for bringing claims.

• 28-01-07:

  • Legal titleholder is presumed to have possession unless someone else has had adverse possession for 20 years.

  • Key Points: Presumption favors legal titleholder unless 20-year adverse possession is shown.

• 28-01-08:

  • Adverse possession under written instrument, judgment, or decree requires 20 years of continuous possession.

  • Key Points: Written title (even defective) + 20 years possession = adverse possession.

• 28-01-09:

  • Defines possession acts with written title: (1) Cultivated/improved, (2) Enclosed, (3) Used for timber/fuel, (4) Partly improved lot presumed fully occupied.

  • Key Points: Physical use and improvement support adverse possession claim under written title.

• 28-01-10:

  • Without a written title, only the part actually occupied can be claimed.

  • Key Points: No written title = can only claim the land physically used.

• 28-01-11:

  • Defines possession acts without written title: (1) Protected by substantial enclosure, (2) Usually cultivated/improved.

  • Key Points: Must show direct use of land without a title document.

Summary of NDCC § 47-10-01 – Method of Transfer

• Topic: Estates in real property (except estates at will or for less than or equal to 1 year).

• How Transfer Must Occur:

  • Must be by:

    1. Operation of law

    2. Written instrument (signed by the party or authorized agent)

• Exception:

  • Estates at will or for a term not exceeding one year.

• Agent Requirement:

  • Agent must be authorized in writing to sign on behalf of the transferring party.

• Court Power:

  • Courts may compel specific performance of real property agreements if there’s part performance.

• Purpose:

  • Ensures valid transfer of significant real property interests is documented and enforceable.

Summary Chart of NDCC Provisions Related to Leases and Security Deposits

• 47-16-01:

  • Defines leasing as a contract where one party gives another temporary possession and use of real property for reward, with the obligation to return it later.

• 47-16-07.1:

  • Outlines rules and limits on security deposits:

    • Must be placed in a federally insured interest-bearing account.

    • Generally capped at one month’s rent (exceptions for felons, prior judgments, or pet deposits).

    • May be applied to damages, unpaid rent, cleaning, or repairs.

    • Must itemize deductions and return the remaining balance within 30 days of lease end.

    • Treble damages for unjustified withholding.

    • Security deposit must transfer with ownership.

    • Applies to the state and political subdivisions.

• 47-16-08:

  • Lessors must ensure the lessee has quiet possession of the leased property during the lease term.

• 47-16-17:

  • Lessee may terminate lease early if:

    1. Lessor fails to fulfill obligations such as repairs or ensuring possession.

    2. The main part or inducement for leasing is destroyed (not due to lessee’s negligence).

• 47-16-30.1:

  • Lessor can dispose of abandoned property (≤ 2,500 in value) 28+ days after the tenant vacates.

  • Proceeds go to the lessor; storage/moving costs can be deducted from the security deposit.

  • Lessor has a lien for storage/moving if property removed after eviction, subject to prior security interests.

Eviction Notice & Service Requirements

• Time for Appearance:

  • The defendant must be given 3 to 15 days from the date the summons is issued to appear.

• Personal Service (Within County):

  • Service must be completed at least 3 days before the appearance date.

• Service Outside County / Other Modes:

  • Service must be completed at least 7 days before the appearance date.

• If Defendant Cannot Be Found:

  • Must attempt service at least once between 6 p.m. and 10 p.m.

  • File affidavit stating defendant cannot be found or is out of state.

  • Mail summons to last-known address, if known.

  • Posting the summons on the door is permitted.

• 3-Day Notice of Intent to Evict:

  • Required before filing for eviction under § 47-32-01(4), (5), (6), and (8).

• How Notice May Be Served:

  • Can be served in the same way as a summons.

  • If a party cannot be found, post notice conspicuously on the premises.

NDCC Evictions: Damages

• 32-03-27. Damages for tenant's failure to surrender premises:

  • Measure of damages is double the rent which the tenant otherwise ought to pay.

• 32-03-28. Damages for tenant's willful holding over:

  • Measure of damages is double the yearly value of the property for the time of withholding, in addition to compensation for the detriment occasioned thereby.

• 32-03-29. Damages for forcible exclusion from realty:

  • Measure of damages is three times such a sum as would compensate for the detriment caused to the person by the act complained of.

• 47-10-01. Method of transfer:

  • An estate in real property, other than an estate at will or for a term not exceeding one year, can be transferred only by operation of law or by an instrument in writing, subscribed by the party disposing of the same or by the party's agent thereunto authorized by writing.

  • This does not abridge the power of any court to compel the specific performance of any agreement for the sale of real property in case of part performance thereof.

• 47-19.1-01. What constitutes marketable title:

  • Any person that has an unbroken chain of title to any interest in real estate and that person's immediate or remote grantors under a conveyance or other title transaction that has been of record for a period of twenty years or longer, and is in possession of the interest, is deemed to have a marketable record title to the interest, subject solely to the claims or defects that are not extinguished or barred by the application of this chapter, instruments that have been recorded less than twenty years, and encumbrances of record not barred by the statute of limitations.

NDCC Recording Instruments

• 47-19-01. Instruments entitled to record:

  • Any instrument affecting the title to or possession of real property may be recorded as provided in this chapter.

• 47-19-02. Instruments entitled to record without acknowledgment:

  1. An instrument issued by an agency, bureau, department, or the judiciary of the United States, this state or a political subdivision of this state, or an Indian tribe recognized by the United States department of the interior.

  2. An instrument certified by an agency, bureau, department, or the judiciary of the United States or a foreign government, a state of the United States or a political subdivision of a state, or an Indian tribe recognized by the United States department of the interior.

  3. A lis pendens or other instrument that is signed by an attorney at law licensed to practice law in this state which bears the attorney's identification number issued by the state board of law examiners.

  4. An affidavit that bears a jurat or verification upon oath or affirmation.

  5. A Uniform Commercial Code financing statement under title 41.

  6. A plat signed by a land surveyor registered in this state.

• 47-19-03. Prerequisites to recording instruments:

  • Before an instrument can be recorded, unless it belongs to a class provided for in section 47-19-02 or 47-19-40, its execution must be established:

    • If executed by an individual, by acknowledgment by the person executing the same.

    • If executed by a corporation or limited liability company, by execution and acknowledgment by the person or persons authorized to execute instruments under section 47-10-05.1.

    • By proof by a subscribing witness as is provided by section 47-19-22.

    • By proof of the handwriting of the person executing an instrument and of a subscribing witness thereto as is prescribed by sections 47-19-23 and 47-19-24 and filing of the original instrument in the proper office there to remain for public inspection.

    • Except as otherwise provided by the law of this state or the law of the state in which the instrument or document was executed, before an instrument may be recorded, the document and any acknowledgment must be executed with an original signature.

• 47-19-13. Acknowledgment and proof - Persons authorized to make - Statewide jurisdiction:

  • The proof or acknowledgment of an instrument may be made at any place within this state before a judge, or the clerk, of the supreme court, or a notary public.

• 47-19-19. Effect of recording:

  • The record of any instrument shall be notice of the contents of the instrument, as it appears of record, as to all persons

• 47-19-21. Proof of an unacknowledged instrument - Method:

  • Proof of the execution of an instrument when not acknowledged may be made:

    • By the party executing it.

    • By a subscribing witness.

    • By other witnesses in cases mentioned in sections 47-19-23 and 47-19-24.

• 47-10-01. Method of transfer:

  • An estate in real property, other than an estate at will or for a term not exceeding one year, can be transferred only by operation of law or by an instrument in writing, subscribed by the party disposing of the same or by the party's agent thereunto authorized by writing.

  • This does not abridge the power of any court to compel the specific performance of any agreement for the sale of real property in case of part performance thereof.

• 47-10-02.1. Property disclosure - Requirements - Exceptions:

  • This section applies to a transaction for the sale, exchange, or purchase of real property if:

    • A real estate broker, real estate broker associate, or real estate salesperson who is associated with a real estate brokerage firm represents or assists a party to the transaction; and

    • The real property is a residential dwelling with no more than four units located in this state being sold or exchanged by the owner.

  • The seller in a transaction subject to subsection 1 shall prepare a written disclosure form and shall make the written disclosure form available to the prospective buyer.

  • The written disclosure form must include all material facts the seller is aware could adversely and significantly affect an ordinary buyer's use and enjoyment of the property or any intended use of the property of which the seller is aware.

• 47-10-03. Agreement to give usual covenants on sale - Duty imposed:

  • An agreement on the part of a seller of real property to give the usual covenants binds the seller to insert in the grant covenants of seizin, quiet enjoyment, further assurance, general warranty, and against encumbrances.

• 47-10-05. Grants - Execution - Witnesses sufficient - Seal unnecessary:

  • The execution of a grant of an estate in real property to entitle the same to be recorded, if it is not acknowledged, must be proved by a subscribing witness or as otherwise provided in sections 47-19-23 and 47-19-24.

  • The absence of the seal of any grantor or grantor's agent from any grant of an estate made in real property shall not invalidate or in any manner impair the same.

• 47-10-06. Form of grant:

  • A grant of an estate in real property may be made in substance as follows:

  • This grant made the day of , in the year of , between A.B., of , of the first part, and C.D., of , of the second part, witnesseth: That the party of the first part hereby grants to the party of the second part in consideration of dollars, now received, all the real property situated in , and bounded (or described) as follows: ___ Witness the hand of the party of the first part.

• 47-10-08. Grant conclusive against whom:

  • Every grant of an estate in real property is conclusive against the grantor and every one subsequently claiming under the grantor, except a purchaser or encumbrancer who in good faith and for a valuable consideration acquires a title or lien by an instrument that first is duly recorded.

• 47-10-19. Covenants implied from use of word grant:

  • From the use of the word "grant" in any conveyance by which an estate of inheritance or fee simple is to be passed, the following covenants, and none other, on the part of the grantor for the grantor and the grantor's heirs to the grantee and the grantee's heirs and assigns, are implied unless restrained by express terms contained in such conveyance:

    1. That previous to the time of the execution of such conveyance, the grantor has not conveyed the same estate, nor any right, title, or interest therein, to any person other than the grantee; and

    2. That such estate, at the time of the execution of such conveyance, is free from encumbrances done, made, or suffered by the grantor, or any person claiming under the grantor.

  • Such covenants may be sued upon in the same manner as if they had been inserted expressly in the conveyance.

• 47-19.1-01. What constitutes marketable title:

  • Any person that has an unbroken chain of title to any interest in real estate and that person's immediate or remote grantors under a conveyance or other title transaction that has been of record for a period of twenty years or longer, and is in possession of the interest, is deemed to have a marketable record title to the interest, subject solely to the claims or defects that are not extinguished or barred by the application of this chapter, instruments that have been recorded less than twenty years, and encumbrances of record not barred by the statute of limitations.

• 47-09-06. Delivery of written transfer - Requirement - Presumption from execution:

  • A grant takes effect so as to vest the interest intended to be transferred only upon its delivery by the grantor and is presumed to have been delivered at its date.

• 47-09-07. Delivery must be absolute - Conditional delivery ineffective, becomes absolute:

  • A grant cannot be delivered to the grantee conditionally. Delivery to the grantee or to the grantee's agent as such is necessarily absolute and the instrument takes effect thereupon, discharged of any condition on which the delivery was made.

• 47-09-08. Delivery in escrow:

  • A grant may be deposited by the grantor with a third person to be delivered on the performance of a condition, and on delivery by the depositary it will take effect. While in the possession of the third person and subject to condition, it is called an escrow.

• 47-09-09. Constructive delivery:

  • Though a grant is not actually delivered into the possession of the grantee, it is yet to be deemed constructively delivered in the following cases:

    1. When, by the agreement of the parties, the instrument is understood to be delivered at the time of execution and the circumstances are such that the grantee is entitled to immediate delivery; or

    2. When it is delivered to a stranger for the benefit of a grantee and the grantee's assent is shown or may be presumed.

NDCC Foreclosure

• 32-19-01. Action to foreclose mortgage on real estate authorized:

  • The plaintiff shall bring an action in district court for the foreclosure of a mortgage upon real property

• 32-19-03. Who subject to deficiency judgment:

  • The plaintiff may not obtain a deficiency judgment in a foreclosure of residential property with four or fewer units of up to forty contiguous acres [16.19 hectares] containing a residence occupied by the owner as a homestead.

  • The plaintiff may obtain a deficiency judgment on agricultural land of more than forty acres [16.19 hectares] but solely for the difference between the amount of the debt and the fair market value of the land at the time of commencement of the action.

  • The plaintiff may obtain a deficiency judgment in all other cases for the difference between the appraised value, as determined by a licensed appraiser appointed by the court at the request of the plaintiff, and the amount determined due.

  • The cost of the appraisal is an allowable cost in the foreclosure action.

• 32-19-06. What judgment must contain:

  • In any action for the foreclosure of a real estate mortgage, the court shall render judgment for the amount found to be due and the costs of the action, and shall order a sale of the premises to pay the amount adjudged to be due.

  • The court may order delivery of the possession of the premises to the purchaser after the expiration of the redemption period unless otherwise ordered by the court pursuant to section 32-19-19.

  • The judgment must provide that during the redemption period the debtor or owner of the premises is entitled to the posses.

• 32-19-06.1. Deficiency judgments on commercial real property:

  • In an action involving the foreclosure of a mortgage on commercial real property, the plaintiff shall state in the pleading whether a deficiency judgment will be sought and if sought shall identify the parties claimed to be personally liable and demand a deficiency judgment against those parties.

• 32-19-07. Other suits permitted:

  • Notwithstanding any other provision of state law, if a promissory note or other obligation and a mortgage, other than a first mortgage, upon real estate have been given to secure a debt contracted on or after August 1, 1993, a mortgagee may bring an action on the promissory note if the mortgagee waives the right to foreclose the mortgage given to secure the note.

  • Allowing a mortgagee to bring an action on the promissory note or other obligation of the mortgagor if the mortgagee waives the right to foreclosure of the mortgage given to secure the note applies only to residential real property consisting of four or fewer residential units.

• 32-19-09. Certificate of sale - Deed and effect:

  • At the sheriff's sale, the person making the sale must give to the purchaser a certificate of sale as provided by section 28-23-11, and at the expiration of the time for the redemption, if not redeemed, the person making the sale, or the successor in office, must give the purchaser, the purchaser's heirs, or assigns, or to any person who has acquired the title of the purchaser by redemption or otherwise, a deed.

  • The deed vests in the grantee all the right, title, and interest of the mortgagor in and to the property sold, at the time the mortgage was executed or subsequently acquired by the mortgagor and is a bar to all claim, right, or equity of redemption in or to the property by the parties to the action, their heirs and personal representatives, and also against all persons claiming under them, or any of them, subsequent to the commencement of the action.

• 32-19-18. Redemption:

  • A party in a foreclosure action or the successor of a party may redeem from the foreclosure sale within sixty days after the sale, except for abandoned property as provided in section 32-19-19 and agricultural land.

  • Agricultural land may be redeemed within three hundred sixty-five days after the filing of the summons and complaint in the office of the clerk of district court or the time of the first publication of the notice by advertisement.

  • The final date for redemption of agricultural land may not be earlier than sixty days after the sheriff's sale.

  • The owner of the property has a paramount right to redeem upon paying the amount bid at the sheriff's sale plus interest on that amount at the same rate as the obligation secured by the mortgage.

• 32-19-18.1. Payment to redeem:

  • A person redeeming from a sheriff's sale may pay the required amount either to the holder of the certificate or to the sheriff.

• 32-19-20. Notice before foreclosure:

  • At least thirty days and not more than ninety days before the commencement of any action or proceeding for the foreclosure of a mortgage on real estate, a written notice shall be served on the title owner of record of the real estate.

• 32-19-21. Contents of notice:

  1. A description of the real estate.

  2. The date and amount of the mortgage.

  3. The amount due to bring the installments of principal and interest current as of a date specified, and the amount advanced by the mortgagee for taxes, insurance, and maintenance, separately itemized.

  4. A statement that if the amount due is not paid within thirty days from the date of the mailing or services.

• 32-19-28. Default may be cured:

  • If the record title owner or the personal representative of the owner's estate, within thirty days from the service of notice before foreclosure, performs the conditions or complies with the provisions upon which default in the mortgage occurred, the mortgage must be reinstated and remain in full force and effect the same as though a default had not occurred in the mortgage.

NDCC Easements

• 47-05-01. Easements attached to other lands:

  • The following land burdens or servitudes upon lands may be attached to other land as incidents or appurtenances and then are called easements:

  1. The right of pasturage.

  2. The right of fishing.

  3. The right of way.

  4. The right of taking water, wood, minerals, and other things.

  5. The right of transacting business upon land.

  6. The right of conducting lawful sports upon land.

  7. The right of receiving air, light, or heat from or over, or discharging the same upon or over land.

  8. The right of receiving water from or discharging the same upon land.

  9. The right of flooding land.

  10. The right of having water flow without diminution or disturbance of any kind.

  11. The right of using a wall as a party wall.

  12. The right of receiving more than natural support from adjacent land or things affixed thereto.

  13. The right of having the whole of a division fence maintained by a coterminous owner.

  14. The right of having public conveyances stopped or of stopping the same on land.

  15. The right of a seat in church.

  16. The right of burial.

• 47-05-02. Servitudes not attached to land:

  • The following land burdens or servitudes upon land may be granted and held, though not attached to land:

  1. The right to pasture, and of fishing.

  2. The right of a seat in church.

  3. The right of burial.

  4. The right of taking rents and tolls.

  5. The right of way.

  6. The right of taking water, wood, minerals, or other things.

  • A historic easement granted with respect to a state historic site and buildings and structures thereon, or property listed in the national register of historic places, in accordance with the provisions of section 55-10-08.

• 47-05-02.1. Requirements of easements, servitudes, or nonappurtenant restrictions on the use of real property:

  • Real property easements, servitudes, or any nonappurtenant restrictions on the use of real property, which become binding after July 1, 1977, shall be subject to the requirements of this section.

  • These requirements are deemed a part of any agreement for such interests in real property whether or not printed in a document of agreement.

  1. The area of land covered by the easement, servitude, or nonappurtenant restriction on the use of real property shall be properly described and shall set out the area of land covered by the interest in real property.

  2. The duration of the easement, servitude, or nonappurtenant restriction on the use of real property must be specifically set out, and in no case may the duration of any interest in real property regulated by this section exceed ninety-nine years.

  3. No increase in the area of real property subject to the easement, servitude, or nonappurtenant restriction shall be made except by negotiation between the owner of the easement

• 47-05-07. Servitude - Extent:

  • The extent of a servitude is determined by the terms of the grant or the nature of the enjoyment by which it was acquired.

• 47-05-12. Extinguishment of servitude - Methods:

  • A servitude is extinguished:

  1. By vesting of the right to the servitude and the right to the servient tenement in the same person;

  2. By the destruction of the servient tenement;

  3. By the performance of any act upon either tenement by the owner of the servitude or with the owner's assent if it is incompatible with its nature or exercise; or

  4. When the servitude was acquired by enjoyment, by disuse thereof by the owner of the servitude for the period prescribed for acquiring title by prescription.

NDCC Nuisance

• 42-01-01. Nuisance - Definition:

  • A nuisance consists in unlawfully doing an act or omitting to perform a duty, which act or omission:

    1. Annoys, injures, or endangers the comfort, repose, health, or safety of others;

    2. Offends decency;

    3. Unlawfully interferes with, obstructs or tends to obstruct, or renders dangerous for passage, any lake, navigable river, bay, stream, canal, basin, public park, square, street, or highway; or

    4. In any way renders other persons insecure in life or in the use of property.

• 42-01-02. Private nuisance - Definition:

  • A private nuisance is one which affects a single individual or a determinate number of persons in the enjoyment of some private right not common to the public.

• 42-01-03. Private nuisance - Remedies against:

  • The remedies against a private nuisance are:

    1. A civil action; or

    2. Abatement.

• 42-01-06. Public nuisance - Definition:

  • A public nuisance is one which at the same time affects an entire community or neighborhood or any considerable number of persons, although the extent of the annoyance or damage inflicted upon the individuals may be unequal.

• 42-01-07. Public nuisance - Remedies against:

  • The remedies against a public nuisance are:

    1. Indictment;

    2. Filing an information;

    3. Bringing a criminal action before a district judge;

    4. A civil action; or

    5. Abatement.

• 42-01-08. Civil action - When maintainable by a private person:

  • A private person may maintain an action for a public nuisance if it is specially injurious to that person or that person's property, but not otherwise.