What binding effect does a correction deed have?
I have a property sold by deed which calls to the boundary of a previously sold parcel. Three months later a correction deed is filed by the seller, retaining a 60' strip between the 2 parcels, apparently in order to maintain an access between properties on each side which were retained by the seller. There is no acknowledgement by the buyer on the the correction deed.
All parcels involved have good road access at other parts of the properties.
15 years later the bank forecloses on the buyer, and then resells to the current owner, using the corrected description (ie/ excluding the 60 foot strip).
Long and short is that if the correction deed is valid the original seller retains title to a landlocked 60' x 275' parcel. If the correction deed is not valid, then the buyer would seem to retain title, or perhaps the foreclosing bank and its successor would have an interest.
The specific area in question is rural, mostly growing wild. Blackberries and so forth. The land is generally being used as Christmas tree farm.
I would hope that a "correction deed" couldn't take something away from a buyer without their acknowledgment. At a minimum where there is no acknowledgment, there should need to be some evidence of intent, or acquiescence of use, to go along with it.
"Oops, I was selling him the SW1/4 SW1/4 sec, not the SW1/4 sec."
> What binding effect does a correction deed have?
>
> I have a property sold by deed which calls to the boundary of a previously sold parcel. Three months later a correction deed is filed by the seller, retaining a 60' strip between the 2 parcels, apparently in order to maintain an access between properties on each side which were retained by the seller. There is no acknowledgement by the buyer on the the correction deed.
>
> All parcels involved have good road access at other parts of the properties.
>
> 15 years later the bank forecloses on the buyer, and then resells to the current owner, using the corrected description (ie/ excluding the 60 foot strip).
>
> Long and short is that if the correction deed is valid the original seller retains title to a landlocked 60' x 275' parcel. If the correction deed is not valid, then the buyer would seem to retain title, or perhaps the foreclosing bank and its successor would have an interest.
>
> The specific area in question is rural, mostly growing wild. Blackberries and so forth. The land is generally being used as Christmas tree farm.
If the grantee didn't accept the Correction Deed, I'd say the instrument was ineffective by itself to alter the terms of the original grant unless there was some other evidence of acceptance, as for example if he executed a Deed of Trust using the revised description.
This is one of the reasons lawyers were invented.
> What binding effect does a correction deed have?
[...]
> Long and short is that if the correction deed is valid the original seller retains title to a landlocked 60' x 275' parcel. If the correction deed is not valid, then the buyer would seem to retain title, or perhaps the foreclosing bank and its successor would have an interest.
You didn't say how the parcel foreclosed upon was described in the deed of trust upon which the foreclosure was made. Was it the original description or the "corrected" one? If the latter, that sounds like evidence that the grantee accepted the correction. If the former, then why would one not think that the bank took back the 60 ft. strip in the foreclosure and can convey their interest in it to their grantee?
IMO the deed is not valid unless all the requirements for adverse possession has been satisfied?
They're strange beasts in this state Mark. By the letter of the law, it does not have to be presented for recording by the grantor (red text below) or even signed by anyone (bold)! YOU could file a correction deed for the subject property. A couple years ago a realtor in these parts filed a correction deed on a 1970s road dedication to correct the ambiguous description. They got the description correct but I question the methodology. This was a dedication across someone else's land to give the realtor legal access.
Ore. Revised Statutes
205.244 Recording of corrected instruments. (1) An instrument that has been previously recorded may be rerecorded to make corrections in the original instrument.
(2) The county clerk shall record an instrument presented for rerecording as provided in subsection (1) of this section. The corrected instrument need not be acknowledged again. The person presenting the instrument for rerecording shall cause a rerecording certificate to be affixed to the first page of the instrument or to a cover sheet authorized by ORS 205.234 (2) added as a new first page to the instrument. The rerecording certificate shall contain the words “RERECORDED AT THE REQUEST OF _____ TO CORRECT_____. PREVIOUSLY RECORDED IN BOOK _____ AND PAGE___, OR AS FEE NUMBER___.”
(3) A certified copy of a recorded instrument may not be altered for the purpose of correcting the original instrument. The person presenting the instrument may present an unaltered certified copy of the recorded instrument when it is attached to a cover sheet authorized by ORS 205.234 (2). The cover sheet must contain the rerecording certificate described in subsection (2) of this section. The rerecorded document may include attachments identified on the cover sheet that are necessary to make the corrections.
(4) A county clerk shall not incur civil or criminal liability, either personally or in an official capacity, for recording a corrected instrument under this section. [1991 c.230 §9; 2009 c.302 §1]
> They're strange beasts in this state Mark. ... Ore. Revised Statutes 205.244 Recording of corrected instruments. ...
Thanks Mike, that's just what I was looking for.
So that ORS says that they can be recorded, but it is silent on what authority they have.
> Ore. Revised Statutes
> 205.244 Recording of corrected instruments. (1) An instrument that has been previously recorded may be rerecorded to make corrections in the original instrument.
> (2) The county clerk shall record an instrument presented for rerecording as provided in subsection (1) of this section. The corrected instrument need not be acknowledged again.
Wow. That's genuinely bizarre. If you have the *original* of a conveyance, you can just type in some other stuff and record it without anyone signing it as long as the accompanying sheet states that the purpose of the correction was to alter the "5 acres" that you felt was less than you really wanted to the "50 acres" you feel as if you should have bought.
"What we've got here is failure to communicate"
strange situation.
The Oregon Statutes: I don't think that the State controls anything but the Recording Requirements, not the actual conveyance. (is recording even required for a conveyance to be valid?)
--
Can I sell something and at some later date change my mind and take it back?
Nope, not in my world.
--
That "mortgage"... did the lender actually take title with a promise to convey to the "buyer" after all conditions of their contract are met?
OR
Did the Lender only obtain a lien on the land and the legal right to obtain title if payments are not made?
I see that as very different in a "foreclosure" but maybe there is no difference in this case. This could be a "contract" issue with the lender... if the Lender was the owner and had actual authority.
I see that as very different in a "foreclosure" but maybe there is no difference in this case.
--
so now what?
I think it is very possible that a crucial Controlling document did not enter the chain of title.
A purchase agreement that "properly/accurately" described what was being sold?
Consent of the Buyer to the correction deed?
so... "What we've got here is failure to communicate"
"What we've got here is failure to communicate"
Here is an Oregon Appellate Court case that may shed a little light on
the validity of a correction deed. (Hilterbrand v. Carter)
"What we've got here is failure to communicate"
:good: Sometimes reason and logic prevail.
"What we've got here is failure to communicate"
> :good: Sometimes reason and logic prevail.
"We agree with the trial court that the 1978 deed created a joint tenancy with a right of survivorship and that mother could not, in the 1983 (correction) deed, unilaterally revoke or alter the contingent remainders that she previously had given plaintiffs."
So I guess basically correction deeds, filed by only one of the parties, don't mean squat. In my mind, I wouldn't think so either..
Mark has a good one on his hands.
> What binding effect does a correction deed have?
This one has none.
Wow! Improper use of the correction deed process has no effect unless executed by all involved parties or there's extrinsic documents proving they acquiesced (and even then may have no effect if not constructed carefully). If not so we would have chaos; I sell you a parcel, then correction deed half the parcel back to myself?? When properly used it is a useful tool.
In this case, one could assume the mortgage was arranged during the sale, not three months later, so the bank foreclosed on the original deed and then owned the entire parcel. Then the bank sold based on the correction deed so still owns the strip in fee. The original buyer went out of the picture upon foreclosure. Obviously the bank has no interest in owning a useless strip of land and should man up and execute a quitclaim deed (not a correction deed) that divests them of the strip, using the original deed's description, to the buyer, gratis, signed by the bank and buyer, original owner's signature not required. The bank *could* sell the strip to an adjacent owner (anybody, even the buyer, actually) but that would be rather shady. They acquired the whole parcel and should sell the whole parcel, not sequentially subdivide it based on an ineffective correction deed and risk getting afoul of subdivision statues. Of course, given more facts and/or the vagaries of the courts, the contrary may be shown.
The problem here is somebody didn't understand what a correction deed's purpose is. Its purpose is to correct an egregious error in the deed which is apparent when examining only within the four corners of the deed. It's for more than a scrivener's error, which can be fixed rather easily. In this case the original deed contained no such error so recording a correction deed with a reddendum clause added and missing signatories is of no consequence except for clouding title and hopefully embarrassing the hell out of that somebody.
I've written a few correction deeds in my career, in cases such as replacing "Beginning at the Southwest corner of Lot 35" with "Beginning at the Southwest corner of Lot 53", changing the County name where the parcel resides (choke!) and, correcting a course which read "10000 feet" to "100.00 feet". No signatories except for the grantor (us) involved. My liability was minimal in such cases and I was willing to assume it.
Maybe that's why Oregon doesn't require signatures of all parties involved; they would probably all agree anyway and a court's deed reformation action would concur in the above scenarios. Not so concerning the subject correction deed. The Oregon Statutes quoted above are to protect the Recorder, not validate a correction deed.
On the other hand, I have refused to record correction deeds where intent is obvious but the error is not obvious by a strict reading of the deed. For example, a deed which read in part "all of John Doe's land southerly of the northerly right of way line described in (Highway) deed . . ." where the deed certainly described the desired partial take of his 1st Street lot, but also took (or clouded) several entire lots he owned about a mile south of said R/W line, discovered rather quickly when he tried to sell a lot and the Schedule B encumbrance popped up (yay Title Company!). A set of quitclaim deeds was the proper tool. I'll never use a correction deed to "correct" the parties involved, their interests in the parcel, the nature of the title transfer(fee/easement/reservation) or, God forbid, as in the subject case above and this one, a change in the actual boundaries of the original deed. Attorneys may do so at their peril, but not me.
Why my reticence? Correcting more than a technical (my) error is fraught with liability. My error is more than a scrivener's error as I am preparing the original document (legal description) and I can fix my error with a corrective deed, but cannot fix errors beyond my purview. Here's a good read on what can go wrong when people think a simple corrective deed clears up problems:
"What we've got here is failure to communicate"
I would think a recorded correction Deed without acknowledgment by the grantee would be evidence of its own existence and not much else.
"What we've got here is failure to communicate"
> So I guess basically correction deeds, filed by only one of the parties, don't mean squat. In my mind, I wouldn't think so either..
I've seen them many times used to correct some minor error, some ambiguity, some missed bearing distance call, or the like. This is the first time I've seen one that materially changes clearly described boundaries.
> Mark has a good one on his hands.
Good? Hmm. Interesting maybe.
> I've written a few correction deeds in my career, in cases such as replacing "Beginning at the Southwest corner of Lot 35" with "Beginning at the Southwest corner of Lot 53", changing the County name where the parcel resides (choke!) and, correcting a course which read "10000 feet" to "100.00 feet". No signatories except for the grantor (us) involved. My liability was minimal in such cases and I was willing to assume it. ... Maybe that's why Oregon doesn't require signatures of all parties involved...
That, of course, is what they are intended to be used for. I've seen plenty like that.
> So that ORS says that they can be recorded, but it is silent on what authority they have.
Correct. And, again, it doesn't even have to be recorded the parties involved in the original conveyance!. In the dedication deed I mentioned above the original grantor was long gone. Realtor found out it was questionable if they had public access across the property because of the mistake ridden 1970s description, so they procured a certified copy of the original deed, rewrote the description of the dedication (based on a survey, at least, which had it right), and recorded it. The statute above does not specify that the original grantor or even the current owners need to be involved so it's outside the legal bailiwick of the County Clerk to confirm this. Nor does it require a notarized signature of anyone, like every other type of deed recorded in the office, just a name of the person submitting it.
Here is the statute which the above references. It just style requirements for cover sheets on all deeds: http://www.oregonlaws.org/ors/205.234
