Real Estate FAQ
Q: Do I always have to go to court to clear up a question of title to property?
A: Not always, but as with virtually all legal questions, it depends on the specific facts in each particular case. In California, there are a few ways to avoid having to go to court to clear up questioned title to property. At least 3 procedures are available to property owners that avoid having to go to the time and expense of filing a lawsuit: (1) filing a Corrective Affidavit; (2.) Re-recording a defective deed; and (3) filing a Corrective Deed.
1. CORRECTIVE AFFIDAVITS: It is often the case that a deed gets recorded that has minor errors in it. In this situation, title companies often will not insure title, and this could prevent a mortgage from being issued to a buyer or a loan to an owner. Such errors often are a complete surprise to owners of property. Cal. Gov. Code section 27361.6 provides a procedure (and forms!) that can be used to correct a deed by simply checking a box. These are called Corrective Affidavits. The categories that can be corrected by simply filing a Corrective Affidavit with the county recorder are (a) A missing or incorrect address of the party requesting return notice in the deed (Cal.Gov Code 27361.6); (b) An incorrect, or missing printed or typed name of an individual or entity near the signature on the deed (see Cal Gov Code 27280.5); An incorrect or missing documentary transfer tax amount due (see Revenue and Taxation Code section 11932); and, Clarification of illegible text in the deed (Cal. Gov. Code 27361.7). Once the appropriate box is checked, the correct information needs to be entered in the form. The name of the city and county where the property is located is also required and you need to sign and date the form in front of a notary and attach a notary’s certification of acknowledgement of your signature. Then take the affidavit to the county recorder in the county where the property is located and file it. Of course the recorder will charge a small fee. Pretty simple right? Unfortunately the errors that can be corrected by this instrument are very limited.
2. RE-RECORDING A DEED: When re-recording of the original document with corrections made in the body of the original document. The deed is re-signed by the original grantor (often not available) and is “re-acknowledged” (notarized again). Other than the minor corrections permitted by a Corrective Affidavit, the deed can be re-rerecorded on two conditions. First the original deed has to be filed with the corrections on it. However often the original deed is unavailable, lost or misplaced, etc. The second problem is the corrections must be made on the original deed and it has to be resigned by the original grantor. This creates a messy and often misunderstood new document that may not clear up the issue that created the problem in the first place. To help minimize potential confusion, the deed should contain an explanation which details the changes. However, a preferred method, where possible, is to file a Corrective Deed, which is also allowed in California.
3. CORRECTIVE DEEDS: A Corrective Deed is a new deed signed and dated by the grantor that originally signed the defective deed. It needs to be acknowledged (notarized ) and meet the regular recording requirements of any California deed. It also needs to be accompanied by a “cover page “ that basically explains the purpose of the Corrective Deed. The cover page must state the document number of the deed it is correcting or the book and page number of the defective deed. It also must identify the error in the defective deed, and it must provide a statement that explains the error on the defective deed and provides the correct language. This corrective language also needs to be on the corrective deed.
If you are able to use one of the above methods to correct a defective deed, you will avoid a lot of the headaches and expense of going to court. Unfortunately, the original grantor is often deceased or otherwise unavailable to correct a deed, forcing the owner to file a Quite Title Action or some other similar lawsuit requesting a remedy from the court. This results in inevitable delays, often unnecessary expenses, uncertainty and potential litigation with heirs or others who might claim a right to the property. So the moral of this story is to fix defective deeds as soon as you find out there is a problem to avoid a court action, if at all possible.
Cal Stead, a Partner in the Bakersfield office of Borton Petrini, LLP, took the time to answer this Real Estate FAQ.
Legal Disclaimer: This article is designed for general information only. The information presented should not be construed to be formal legal advice, nor the formation of a lawyer/client relationship.