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Most title professionals have encountered document errors after closing.
A misspelled name. A transposed lot number. An incorrect legal description.
Usually the solution seems straightforward: correct the mistake and move on.
But what happens when the āmistakeā isnāt really a typo at all?
One closing, two lots, a seller who thought they sold one property, a buyer who believed they purchased two, and a correction that triggered a lawsuit taught Michael Holden a lesson he never forgot.
The story begins with a Scrivenerās Error Affidavitāand gets much more complicated from thereā¦
The Scrivenerās Error Affidavit
Have you heard of this situation before? Your title agency gets a call about a closing that took place six months ago. The title agency handling a new transaction on the same property has discovered an error in the legal description used when your agency did the previous closing. The new title agency wants your company to record a Scrivenerās Error Affidavit to clear up the error. If you are unwilling, the title agency is threatening to turn the problem into your underwriter as a claim. What do you do?
First, some history. The term āScrivenerā originates from the Latin word scriba, meaning scribe or clerk, referring to someone who wrote official documents, copied manuscripts, or maintained records. In the 1800s, this term was sometimes used to describe a public notary or someone who prepared deeds and wills. In our meaning, a Scrivener is usually a title or escrow practitioner who handles the drafting of documents for real estate closings. The term appears in Herman Melvilleās 1853 story Bartleby, the Scrivener, which explores the life of a law clerk in a New York legal office.
A Scrivenerās Error Affidavit has a more specific definition. It is a legal document used to correct minor clerical or typographical errors in official records, such as deeds, mortgages or contracts. This affidavit serves to clarify the intended meaning of the document without altering its substantive terms (emphasis added). It is typically signed by the party who originally prepared the document or has knowledge of the error, and it is then recorded to officially correct the mistake.
Here is how a Scrivenerās Error Affidavit should be used: Suppose a deed transferring property ownership incorrectly lists the legal description as āLot 21 of Blackacreā instead of the correct legal description of āLot 12 of Blackacre.ā This minor clerical error could create confusion in title searches or future transactions. Instead of drafting and executing an entirely new deed, the party who prepared the original deed (such as a title agent or attorney) may file a Scrivenerās Error Affidavit with the county recorderās office. The affidavit would state the nature of the error, provide the correct information, and affirm that the mistake was purely clerical, ensuring the record accurately reflects the intended transaction.
Ah, if it were only that simple. Sometimes the easiest solution creates the biggest headache. Hereās a real-world title story that proves whyā¦
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