Q: My deed contains an error. Instead of one of the property lines being described as running “south westerly 146 feet,” it reads “south easterly 146 feet.”
For purposes of selling or passing on the property to heirs without a problem at a later date, is this defect significant enough to warrant requesting the attorney who prepared the deed to correct the error — with a new deed or by some other means — to remove an issue in the future?
A: Heck, yes! And if that is truly a mistake on the deed, we’re glad you caught the error. We believe you should go back to the attorney and get the deed corrected, because there are a few things that must be correct on a deed to avoid complications down the line, including the names of the owners, the names of the buyers, the tax parcel identification number, the address and the legal description.
Before we go into details, we do want you to make sure that the "error" you think is there is truly an error. If you have a survey of your property, the survey should have a matching legal description to the deed and your title insurance policy, if you got one when you purchased the home. If all three legal descriptions match, we would question whether you have an error in the legal description.
Assuming you’ve already done this, or somehow verified the information, we’re guessing you’ve determined that the error definitively exits. How could this have happened? It may have been because the survey showed the “south westerly” direction and your deed showed the “south easterly” direction of the property.
If the survey legal description is short and rather simple, you should track it on the survey: Find the starting point for the legal description, and follow the legal description as if you were following directions. If the directions follow correctly on the survey, we'd guess you're right and the deed is wrong.
While the address is important, the legal description is even more important. When it comes to a single-family home, many homes are located in subdivisions. When a seller conveys title to a buyer, the seller’s deed might contain a reference to, say, Lot 30 in such and such subdivision. If the reference to the lot is wrong, the buyer would not receive title to the right property. The same is true in condo buildings, where parking is sold separately. If there is a mistake in the parking space number listed on the deed, the buyer will technically be sold the wrong parking spot. Something similar happened to one of Sam’s clients recently, and it caused a problem when it came time to sell.
Likewise, when a property is not subdivided, the legal description may be referred to as a metes-and-bounds description. That description, if the property were a rectangular parcel, would start at a specific point, then describe the distance to the next point with certain coordinates, then again to a third point by distance and coordinates, and finally one last distance with more coordinates. If the legal description is proper, it makes the rectangle (or whatever shape of the property), and the legal description closes properly.
That’s why you should have the issue corrected. In some instances, the correction can be made on the original recorded document and that document can be re-recorded with the correct information and an indication that the document was re-recorded to correct a scrivener’s error. Now if you purchased the property and obtained title insurance, you may be able to go back to the title company that insured your purchase and have them or the settlement agent correct the issue.
This is another reason why it’s so important to review all the documents before you sign them at the closing. Mistakes can creep into the process. Ilyce once caught a refinance loan agreement with the wrong interest rate on it, and it’s a lot less hassle to correct the documents at the closing than afterward.
Ilyce Glink is the author of “100 Questions Every First-Time Home Buyer Should Ask” (4th Edition). She is also the CEO of Best Money Moves, an app that employers provide to employees to measure and dial down financial stress. Samuel J. Tamkin is a Chicago-based real estate attorney. Contact them through her website, ThinkGlink.com.