Mr. Stahl?
I don't see how filing a corrective deed is going to help in case of a foreclosure if the deed of trust is not corrected accordingly. How is the new description in the corrective deed going to magically appear in the Trustee's Deed? The lender is going to foreclose on what was described in the Deed of Trust and that will be what they think they are getting isn't it?
Mr. Stahl?
Stahl says: The grantee's only remedy would be to file a quiet title action (including every party in reliance), then look to the grantor for the costs (damages). Filing a correction deed provides a simple remedy to all parties but does require recognition of the mutual mistake of the original grantor and grantee.
Correction Deeds provide a simple fix to an otherwise insurmountably complex problem.
JBS
This is somewhat misleading. You do not have to include 'every party in reliance', you need only list known parties with definable interest and publish a public notice for unknown parties in a suit to quiet title.
However, when there is a clear chain of title from the original grantor, the remedy I described above requires only that the register of deeds cross reference your correction document with the deed reference you and the owner specify in the correction documentation with and having the owner furnish a copy of the recorded document to the lender with the notation that your correction removes a cloud on the title which makes the property more valuable and nullifying the 'due on sale' clause because nothing was changed from the actual parcel that existed at the time the loan was made. Remember, it is a clear caution in all acceptable legal reference material that the record description may contain errors; therefore correction of those 'errors' can be an independent application but only the surveyor can provide the application because only the surveyor can determine if an 'error' exists and what corrective action would correct the 'error'. Lawyers are not capable of recognizing the existence of these 'errors', therefore they are not qualified to know what correction procedure is appropriate; that is why they have to defer to the courts when we do not need a judge's approval to provide a service that is unique to the surveying profession. Some 'legal guidance' from lawyers is not always reliable nor applicable. It is understood that a judge may have to review our act but that call for a review can only come from a party who has 'standing'.
Not all provisions of contract law apply to real estate sale contracts. Provision can be made to accomodate the unconditional right of disposition that is fundamental to land ownership here in the US. The concept of 'public policy' refered to in Black's definition of Restraint of Alienation applies.
Richard Schaut
Mr. Stahl?
> I don't see how filing a corrective deed is going to help in case of a foreclosure if the deed of trust is not corrected accordingly.
>
The corrective deed will take affect the moment the correction is filed and its effect will relate back to the time the original deed is executed and recorded. Those dates are PRIOR TO the Deed of Trust.
>How is the new description in the corrective deed going to magically appear in the Trustee's Deed? The lender is going to foreclose on what was described in the Deed of Trust and that will be what they think they are getting isn't it?
>
No. The lender has the right to foreclose on the PROPERTY which was originally conveyed in accordance with the original intent of the original grantor and grantee. The property sold in the original transaction is the property the grantor and grantee agreed to sell. The description is made in error and is corrected by the correction deed. Every document and deed subsequent to the original is AUTOMATICALLY corrected by OPERATION OF LAW. There is no need for a physical change moving the ink on the paper. It's as if the original document is opened up, the erroneous description is removed, and the correct description is substituted in its place as if the original document was correct from the beginning.
A Deed of Trust foreclosure made after the correction deed is recorded would foreclose on the correct description as that was the original agreement. For more on this legal doctrine, search for the "doctrine of reformation." The parties only have to sue one another for "reformation" when they can't agree about the terms of the original agreement. If they mutually recognize the mistake, they are not prevented from fixing it.
JBS
> I would want to exchange deeds on something like this. Corrective deed works well for some things, but here you have an entirely different piece of property rather than a correction of one call. I doubt the title people or the buyer will be satisfied with a correction deed or affidavit. But one never knows.
Corrective deeds are designed to repair a mutual mistake made between the parties when the expressed language contained in the deed fails to properly convey the intent of their original agreement. That seems to be the case here. The property isn't a "different" piece of property than they agreed upon. The description is in error as it fails to describe the property they agreed to convey. This is a perfect situation for a correction deed.
I don't understand why any title person or buyer would be dissatisfied with simply fixing an error made in the writings. If the writings are wrong, and the parties agree they were wrong, then the writings need to be corrected.
There are lots of case examples of corrected deeds which describe entirely different properties or fail to mention excepted parcels. The major advantage of the corrective deed is that the original agreement is upheld. Its original terms; its original dates; its original parties; and, including all subsequent agreements that rely upon the original agreement.
JBS
Mr. Stahl?
>
> This is somewhat misleading. You do not have to include 'every party in reliance', you need only list known parties with definable interest and publish a public notice for unknown parties in a suit to quiet title.
>
Thanks for using the word "somewhat."
Can't say as I'd agree with much in the subsequent paragraph, but I can't say as I'd disagree with all of it. I'm not going there.
JBS
