Scrivener’s Affidavits, Corrective Deeds and Curative Notices.
Sometimes, not everything in life goes as planned. This is never more true than when it involves real estate and the law. At times, when drafting real estate documents, such as a deed, a mistake can happen despite the drafter’s best efforts. It is not uncommon for a deed to contain a spelling error in a party’s name or in a street address. Sometimes, there may be a typo of a wrong number or symbol in a lengthy legal description for a property. These types of errors can usually be corrected rather easily by having the drafter complete an Affidavit of Scrivener’s Error attesting to and clarifying a mistake. For example, where a grantor is listed as “John Doe” who resides at “124 Main Street, USA” the deed can later be amended to clarify that John Doe is “Jonathon Doe” who really resides at “123 Main Street, USA.”
Minor errors found in legal descriptions can be corrected by a curative notice recorded in the county public records. The legal description may state “northeast” when it really should have said “north.” Errors found in quit claim deeds or deeds containing metes and bounds descriptions, are corrected by recording corrective deeds that inform real estate professionals about a former, but minor problem in the conveyance instrument.
Scrivener’s Affidavits, Corrective Deeds and Curative Notices, however, are very limited in their legal scope because they can only address minor changes that have little legal impact on the language in a conveyance. They are not substantive. But where corrections are needed to change the intent of any party to a legal document, then court intervention is required to reform or change a deed instrument. For instance, a court decision is required to remove a person’s name from a deed. Another example where an error in a deed has greater legal consequences than just correcting a typo or spelling error is when the title to a property is vested incorrectly in a party or parties. This means that the parties hold a property interest contrary to their initial intent. An example would be when real estate title is vested or conveyed in the grantees as “tenants in common,” when the grantor had initially intended to convey the property to the grantees as “joint tenants with full rights of survivorship.” In the current example, parties that are tenants in common do not need the permission of any other co-owner on title to convey their property interests to a third party. However, holding joint ownership requires the permission of all grantees to approve of one party’s conveyance. If the grantor intended to convey the title as tenants in common, then in such circumstances, the parties would need to reform the deed by bringing an action for reformation of the deed.
Reformation of Deed.
To reform or change a deed, the parties to the deed must bring a legal action before a circuit court requesting that the court “fix” the deed by issuing a judgement or order stating identifying the original intent of the parties, and what needs to be legally changed.
Legal Requirements to Reform a Deed
When requesting the court to intervene and reform a deed, the parties must prove to the court the following information:
- Provide evidence of the existence of the deed instrument that needs to be reformed or changed.
- State why it is important that the deed should be changed, and show that the current language in the document is inconsistent with what was intended and agreed upon by both the grantor and the grantee. In other words, the parties have to show the court the original intent of the deed.
- The parties must then allege the time and manner that they discovered the discrepancy in the deed and then demonstrate to the court how the parties are injured or impacted by the language in the erroneous deed.
- Sometimes there are multiple parties on a deed and not everyone may agree with the complainant’s request to reform the deed. In such a case, the parties need to first show that a request was made with the other party to follow the change and that they refused.
- Finally, the parties must convince the court that there are no other available legal options or remedies available to them to carry out the intended purpose of the deed. The judge will require that the parties show that they were mistaken about how title was conveyed when the deed was drafted. Otherwise, the parties will have to demonstrate incidents of fraud, accidents, illegality, or that one party is unjustly enriched by the current language in the offending deed.
Deed Reformation versus A Quiet Title Action.
An action to reform a deed is not to be confused with a quiet title action for a property. A quiet title action is meant to obtain clear and marketable property title against third parties who have potential legal claims of ownership in real property. This type of lawsuit “quiets” any potential challenges to the title. Whereas an action to reform a deed addresses and clarifies the intent, rights and obligations between the parties that are listed on a deed. However, both actions are equitable actions, meaning that the court has wide latitude to make an ethical decision based upon what is fair and reasonable for the situation in hand.
If you have further questions on when the courts are needed to confirm or change the language in a deed, feel free to contact the real estate attorneys at Soble PLC at 888.789.1715.