Let’s first start by differentiating between a mistake and a defect.
A mistake is listing an incorrect grantee or legal description on the deed. A defect is an error with the execution of the deed, such as the lack of witnesses, proper execution or notary acknowledgement. We’re going to touch on some of the curative statutes and remedies for defects, but are mainly going to focus on mistakes.
When a mistake or defect is first identified on a deed, one has two options: File a Scrivener’s Affidavit or a Corrective Deed.
A Scrivener’s Affidavit is an instrument that is recorded in the public records to put others on notice/clarify the intent of a previously recorded instrument. This affidavit does not correct or remedy any defects, it merely puts additional information in the public records. As with any affidavits, the document would need to be signed by the affiant and notarized.
A Corrective Deed is a newly executed deed. The document would typically be titled “Corrective Deed”, contain the same exact conveyancing language as the Original Deed, and contain a clause/note reciting why it’s being recorded. A corrective deed is NOT someone marking through, adding clauses or signatures to the Original Deed. A key, and somewhat counter-intuitive, point is understanding that a corrective deed does not necessarily “correct” a mistake or defect. We’ll go into this further below.
So, when do you use a Scriveners Affidavit vs a Corrective Deed?
As detailed above, the short answer is that a scrivener’s affidavit may only be used when the mistake does not affect the vesting of title. Examples would include:
- Mistaken deeding of lands which the grantor never owned (legal description example below)
- Typos in the legal description which do not materially affect (i.e typo in name of subdivision)
For all other matters, a corrective deed must be obtained. Examples include:
- Mistaken deeding of lands which grantor previously owned
- Significant typos in the legal description (i.e. incorrect distance call, not monumented).
- Incorrect Grantee name.
- Lack of witness(es)/proper acknowledgment
- Incorrect granting language
Legal Description Fix (Title Note 7.03.01/Uniform Title Standard 3.2)
A common situation in which a scrivener’s affidavit or corrective deed is utilized is when an incorrect legal description was shown on a deed. This situation has two outcomes:
- The Grantor of the Original Deed had no interest then or ever in the land that was conveyed. If the grantor is nowhere in the back chain of the property which was inadvertently conveyed, this deed is known as a Wild Instrument. In accordance with Uniform Title Standard 16.5, a wild instrument does not render title unmarketable if it can be reasonably determined from the record that the wild instrument was intended to describe other real property. An underwriter will typically rely on/require a corrective deed or scrivener’s affidavit placed of record stating that the intent was to convey other property in order to lift the cloud of title.
- The Grantor of the Original Deed had current or prior interest in the land that was conveyed. Under Uniform Title Standard 3.2, a grantor who inadvertently conveyed title that they owned or previously owned may not correct or modify the transaction by executing a corrective deed. The grantee of the original deed will need to deed out/back their interest.
To summarize, a scrivener’s affidavit should rarely be utilized. When in doubt, get a new deed signed by the Grantor. If the lands were conveyed to a valid Grantee, you’ll need the Grantee (not the Grantor) to execute a deed back to the original Grantor.
Are you ready for an even more detailed explanation of deeds (and the template forms). Download our Deeds & Conveyances eBook. Here’s what it includes:
- Template copies of Warranty, Special Warranty, Quitclaim, Corrective Deeds as well as a sample Scrivener’s Affidavit.
- A detailed explanation of the requirements of a valid deed.
- Questions you need to ask yourself before sending your deed to be recorded.
- How to correct an error with a deed in your chain of title.
- Much more.