Real estate attorneys are occasionally faced with questions from clients and lenders about correcting typographical or other errors appearing in a recorded document. It is often suggested that simply filing an affidavit should be sufficient to correct the document, but such affidavits are not always capable of accomplishing the intended result. North Carolina recently revised its statutes regarding corrective affidavits, and this brief overview is intended to highlight distinctions between the various affidavits currently available.
Affidavits for Minor Typographical Errors
In the event a recorded instrument contains a “nonmaterial” or other minor error, an affidavit may be recorded to provide notice of the error. The operative word being “notice” as an affidavit which merely describes the error in a prior document will not actually function to correct that document. Such affidavits should not be relied upon if the error is material, meaning the typographical error affects the rights of the parties to that document. However, these affidavits can be utilized to inform future parties of truly minor errors.
Affidavits for Notary Errors
It is not uncommon for a notary’s certificate to inadvertently omit a person’s name, the date, or other required information (most often the certificate in question is a notary acknowledgment on a Deed, Deed of Trust, etc.). In those circumstances, North Carolina provides a method of actually curing the defect with an affidavit. The original notary must be the person who executes a corrective affidavit to describe the error, and may include an exhibit to show how the acknowledgment was intended to read. A properly completed and recorded affidavit has the effect of fixing the original instrument, but this remedial benefit only extends to the notary acknowledgment, and will not correct any defects outside of a notary certificate.
Affidavits for Obvious Errors in the Description of Property
The biggest change in North Carolina’s laws on corrective affidavits became effective August 31, 2018. Our legislature created a mechanism for fixing certain typographical errors relating to the description of property in a recorded document. The procedure for utilizing the statute is worthy of its own blog post for another day. Suffice to say for the moment that this law only allows for the correction of some errors related to the description of real property, specifies that the affidavit must be executed by an authorized attorney, requires a degree of notice to parties affected by the affidavit, and establishes a specific waiting period before recording the affidavit. Most notably, if all requirements are met, an affidavit recorded pursuant to the new statute does have a curative effect which relates back to the date and time of the original recording. Parties to the instrument are then bound by the affidavit as if the correction described therein exists within the originally recorded instrument.
So yes, it is possible to “fix” certain errors in previously recorded instruments, but the type of error and its implications to the parties affected must to be evaluated before determining which affidavit, if any, can be used. If you have questions or concerns about corrective affidavits and how they might address a problem with your title, please contact one of our attorneys at Law Firm Carolinas. in either our Charlotte or Greensboro offices.