Title Curative Documents

What Is Title Curative?

Title curative is the phrase used to describe several processes used to remedy, or “cure” a defective title. It applies to ambiguous or erroneous real estate documents and instruments. The process focuses on verifying that the use and possession of the property are consistent with the recorded title, as is the case when handling a quiet title action. Because even a small mistype in a document can thwart a transaction closing, having the support of an experienced real estate attorney is key to averting delays.

What Is A Scrivener’s Affidavit?

Originally, a Scrivener’s Affidavit, or affidavit of correction, was used to correct non-fatal errors and dubious legal descriptions. Affidavits were used to remedy “clouds” or issues that might compromise the validity of the title. At first, the purpose of a scrivener’s affidavit was to rectify any cloud on title that wouldn’t fundamentally affect the instrument interpretation and/or property description. Over time, however, the use of the affidavit began to expand well beyond its original intention. Parties began to use a scrivener’s affidavit to add additional information to a title that was not there in the original document.

In August 2018, House Bill 584 clarified the use of the Scrivener’s Affidavit, adjusting the name to a corrective notice. Now real estate transactions affected by description errors can be cured through a process guided by a licensed real estate lawyer. To learn more about filing a corrective notice, contact our law office.

Common Title Curative Issues

These issues can occur in either commercial or residential property transactions. Regardless of the depth of prior deeds, it’s crucial to seek the assistance of a real estate law firm to remedy any of the following situations.

• Land Descriptions: The land described in the deed or leases must be in a form consistent with each jurisdiction’s requirements.
• Recordation: The registered document must have all the elements required by the county of record.
• Failure Of Acknowledgements: An acknowledgment occurs when the maker(s) of a real estate document appears before a judicial officer, such as a notary public, and acknowledges they willingly signed the document and for the purpose(s) stated in it. If the acknowledgment isn’t in the correct form, the document could be deemed inexecutable.
• Death, Intestacy, & Wills: All testamentary documents must show the testator’s sufficient intent to transfer title to the new owner.
• Marital Interests & Divorce Decrees: A divorce decree must explicitly transfer a title through the family court and be properly filed on record. Alternatively, a quitclaim deed may be obtained from the spouse.
• Joint Tenancies & Life Estates: Any ownership under specific circumstances needs to be approached and conveyed in the proper capacity. For example, with an estate, the death of the person holding the estate may need to be addressed in the documentation.
• Mortgages & Tax Liens: Any liens that haven’t been released need verification. For mortgages, portions of the property may be released with a takedown schedule, or with consecutive partial releases.
• Company Conveyances, Corporations, Mergers & Partnerships: Execution of any conveyancing documents must be done by the appropriate company executive. During acquisitions and/or mergers, for example, merger documents may require a filing of record or chain title.
• Held By Production Leases: If the lease includes held-by-production clauses, research may be necessary for records held by the state governing agency. Research is done to verify whether production continued for the previously designated period.