Corrective Deeds and Scrivener’s Affidavits
No matter how meticulous we are, we all make mistakes. These mistakes can cause problems when transferring real estate by deed. They usually fall into one of two categories:
- Mistake in the Deed – For example, misspellings, errors in legal descriptions, taking title in the wrong name, or using wrong form of co-ownership.
- Error in Execution – Examples include using the wrong form of notary acknowledgment, failure have the deed signed by all parties, or (in states like Florida) failure to have deed properly witnessed.
It is important to correct these types of issues as soon as they are discovered.
Attorney Practice Note: You should not assume that a deed is correct merely because the clerk or other recording office accepts it for recording. The scrutiny that the recording clerk provides differs from state to state and even from county to county. Many clerks will accept any properly-formatted document, even if it contains errors.
Correcting the Deed Before it is Signed and Recorded
If the erroneous deed has not been signed or recorded, the mistake is easy to correct. You only need to correct the deed before it is signed and recorded. There are two ways to do this:
- If you need to make a minor textual change (such as correcting a legal description or a spelling), the best choice is to open the document in word processing software and change the erroneous text. Popular word processing programs include Microsoft Word (free web-based version and paid version for Windows and Mac), Open Office (free for Windows and Mac), Google Drive (free web-based editor), and Pages (for Mac).
- More structural changes (such as adding new owners or changing the type of deed) involve interdependencies that may not be readily apparent. For example, changing a deed to transfer property to two grantees instead of one requires a decision about the way in which the joint owners will hold title. It is best to use our deed creation software to make these types of changes. We allow you to change your answers for 24 hours after you first create the document.
All of this assumes that you catch the error before the document is signed and filed. What happens if a deed with an error in it has already been signed and recorded with the clerk? In that case, you will probably need a Corrective Deed or a Scrivener’s Affidavit.
What is a Corrective Deed?
A Corrective Deed is a special type of deed used to fix problems in deeds that have already been recorded. Unlike other types of deeds that transfer interests in real estate, a Corrective Deed does not create a new interest. Instead, the Corrective Deed corrects the documents relating to the prior transfer of interest.
Say, for example, that you sign and record a deed that has a misspelling in the legal description. You may create a Corrective Deed to correct that legal description.
To create a Corrective Deed, start with the document you have already recorded. There are three changes to convert that document to a Corrective Deed.
Change 1: Add “Corrective” to the Title
The first step is to change the title of the deed. This allows third parties—like title companies and lenders—to easily see that the document is being filed to correct a prior deed.
Assume, for example, that the prior deed is a California quitclaim deed. In that case, the deed title will probably be “Quitclaim Deed.” That title should be changed to “Corrective Quitclaim Deed.”
Change 2: Make the Correction
The next step is to correct the error in the prior deed. If the error is a misspelling in the legal description, simply correct that error.
Change 3: Add an Explanation
The final step is to add an explanation for the correction. This provides third parties with a simple statement of why the Corrective Deed is being filed. The explanation should describe the title of the prior document, information about where it was recorded, and the exact change. For example:
This Corrective Quitclaim Deed is made to correct the Quitclaim Deed recorded on January 27, 2015, as Instrument No. 201501311 in Book 1771 at Pages 259-271, in the land records of Los Angeles County, California. The legal description in the Quitclaim Deed recorded on January 27, 2015, inaccurately stated that the Pat B. Harris Survey was recorded in Book 192 when it is actually recorded in Book 162.
This statement clarifies that you are only making a correction and not changing anything that would require the involvement of others. This information can be added anywhere, but usually appears below the legal description in the body of the deed.
What is a Scrivener’s Affidavit?
Scrivener’s Affidavits are sworn statements by the person who drafted a deed. Unlike a Corrective Deed, a Scrivener’s Affidavit doesn’t correct anything. Instead, it simply adds information to the property records to help clarify something about the prior deed.
Example: Assume that Amber Jones conveys property to John Doe. A later deed conveys property from J. Doe to Susan Parker. This creates ambiguity in the chain of title because title examiners do not know with certainty that “John Doe” and “J. Doe” are the same person. In this situation, the person who prepared the second deed may file a Scrivener’s Affidavit stating that “J. Doe is one and the same person as John Doe.” This helps resolve the ambiguity in the title.
Compared to Corrective Deeds, Scrivener’s Affidavits are of limited use. Because a Corrective Deed is signed by the original transferor or transferors and includes all of the information on a single document, a Corrective Deed provides more certainty than a Scrivener’s Affidavit. Scrivener’s Affidavits should only be used when no change needs to be made, but additional information will resolve the title issue.
Limitations of Corrective Deeds and Scrivener’s Affidavits
Note that Corrective Deeds and Scrivener’s Affidavits are used to correct problems that occurred when the original deed was prepared and recorded. You would not use a Corrective Deed or Scrivener’s Affidavit to change the substance of the transaction.
For example, you should not use a Corrective Deed to transfer property to a new owner that was not named in a prior effective deed. That new owner already has rights in the property. If you want someone else to receive the property, the new owner must agree and sign a new deed transferring the property to the person that you now intend to have it.