Caveat Emptor: Material and Nonmaterial Corrections to Deeds
In a previous article, we examined the anatomy of a deed. In this follow-up, we will examine a few options to correct certain errors in deeds. But first, let’s spend a moment on how errors in deeds tend to occur in the first place.
The ordinary system of conveying title to real property can be conceptualized as the passing of a baton between runners in a relay race—title is passed sequentially from one owner to another in a sort of chain, hence the commonly used phrase “chain of title.” But this conceptualization is grossly oversimplified. To be more accurate, you would have to imagine a relay race where some runners carry multiple batons, each of which can be broken into pieces which can then be handed to several different successors, or some pieces may even be retained by the prior runner. Also, the racetrack has no lanes and nobody wears a jersey or uniform, so sometimes a baton can be handed to the wrong person. With this level of complexity in mind, it should be no surprise that occasionally the wrong baton or piece gets handed to the right person, or the right baton or piece gets handed to the wrong person.
Now let’s snap back from the race analogy and morph the baton into a deed. Also, for simplicity’s sake, let’s say that the deed is anatomically sufficient (refer to the prior article on deed anatomy, mentioned above), and has been recorded. However, the deed contains a mistake. Because the deed has been recorded and must, therefore, be preserved in its originally recorded form, “warts and all,” the correction must be effected by a separate instrument, called…wait for it…a “correcting instrument.”
There are two types of correcting instruments, depending on the type of error being corrected, and the requirements differ for each. Nonmaterial correction instruments may be executed and recorded by any person with knowledge of facts relevant to the correction, if the correction is nonmaterial and due to a clerical error. Such nonmaterial errors include errors in the legal description, in a party’s name or marital status, or in the date the deed was executed. Material correction instruments, on the other hand, must be executed and recorded by the parties to the original instrument or the parties’ heirs, successors, or assigns, as applicable. Material corrections include corrections to add or remove land from the deed, to add a buyer’s disclaimer of an interest in the property subject to the deed, or to accurately identify a lot or unit number if the seller owns multiple lots or units in the same subdivision and the wrong one was identified in the original deed.
Correction instruments may be recorded at any time, but if a bona fide purchaser for value without notice (often referred to by practitioners as a “BFP”) acquires an interest in the property on or before the date the correction instrument is recorded, the interest acquired by the BFP is not subject to or limited by the correction instrument.
Another possible effect of errors in deeds is that someone could potentially acquire actual, legal title by adverse possession under the “color of title.” Suppose, for example, that a deed erroneously includes a bit more property than it should in the legal description. In other words, it describes a bit of the neighbor’s property, but it’s an honest mistake. In the absence of a correcting instrument, the neighbor could lose title to that part of their property by adverse possession because the grantee of the deed-in-error has “color of title.” Although color of title is not needed for adverse possession to occur, having it accelerates the process.
Ultimately, there are a number of legal reasons why a person may want to record a deed as soon as possible, even when they know it contains an error. Ideally, errors would be caught and corrected before the deed is recorded, but at least there is a method for making both material and nonmaterial corrections after the fact. Just keep in mind that, because correcting instruments must be recorded separately from the original instrument and may be recorded at any time, you should be wary of any instrument you find in the deed records, for it may have been legally supplanted by a correcting instrument.
Please do not rely on this article as legal advice. We can tell you what the law is, but until we know the facts of your given situation, we cannot provide legal guidance. This website is for informational purposes and not for the purposes of providing legal advice. Information about our real estate practice can be found here.