A Defective Deed….Now What?
The closing documents have been signed and recorded, the funds have been disbursed, and the parties are thrilled the transaction has closed. Unfortunately, closing the transaction does not always signify the end of the file. Post-closing issues sometimes arise, and when they do, it is important to resolve them as quickly and efficiently as possible.
An Error in The Legal Description of The Deed
One such post-closing issue that may arise is a mistake in the recorded deed. There are several examples of what constitutes a mistake in the recorded deed; one of the most common being an error in the legal description of the property being conveyed. An erroneous legal description attached to a deed operates to cause the recorded deed to be defective, and impacts the chain of title. Some examples of an incorrect legal description in a recorded deed include, but are not limited to, a wrong call in the metes and bounds legal description of the property conveyed, an incorrect lot number in a platted legal description, or an incorrect plat book reference. However, the good news is that it can be corrected by taking the required corrective steps.
Improper Way to Correct an Error in The Legal Description
A defective deed may not just be re-recorded with the new, correct legal description attached to it, or with information added to the legal description after execution. In Connelly v. Smith, 97 So.2d 865 (Fla. 3d DCA 1957), the section, township and range were omitted from the legal description of the property being conveyed. The grantee in that transaction inserted the section, township and range after execution and delivery of the deed, and then re-recorded the deed. The court ruled the legal description in the original deed was insufficient, and the grantee’s voluntary insertion of information to the legal description after execution and delivery was of no effect.
Proper Way to Correct an Error in the Legal Description
When a mistake in the legal description is discovered, the correct process by which the mistake is remedied is to: (1) have a corrective deed re-executed by the original grantor and properly witnessed and notarized in accordance with Florida law; and (2) have the new corrective deed recorded. Having the original grantor re-execute a corrective deed and recording the same is the only way to effectively correct an error in the legal description of a defective deed.
Drafting the Corrective Deed
When recording a corrective deed, it is helpful to include a cross reference within the corrective deed that references the recording information of the defective deed. For example, a notation within the corrective deed may be included that states, “This corrective deed is given to correct an error in the legal description of that certain deed dated ______ and recorded ______ in Official Records Book ___, Page ___, Public Records of _____ County, Florida.” The notation is not necessarily required, but may aid in the understanding the chain of title in transactions that follow.
In the frenzy to close a transaction, occasionally a mistake such as an error in the legal description attached to the deed may occur. In the event that it does, the mistake can be remedied but only by having a corrective deed properly re-executed by the grantor and recorded. Since parties move on and memories and feelings fade or change, it is important to act as soon as possible to properly correct an error in a deed as soon as the error is discovered.