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Introduced Version House Bill 4576 History

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Key: Green = existing Code. Red = new code to be enacted

WEST virginia legislature

2020 regular session

Introduced

House Bill 4576

By Delegates Shott, Nelson, Lovejoy, Canestraro, Steele, Byrd and Pyles

[Introduced January 28, 2020; Referred to the Committee on the Judiciary]

A BILL to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §36-3-11, relating to establishing a procedure for correcting errors in deeds, deeds of trust and mortgages; providing definitions; establishing that obvious description errors in a recorded deed, deed of trust or mortgage involving the transfer of interest in real property may be corrected by recorded affidavit; requiring that the correction of an obvious description error may not be inconsistent with the recorded property description; establishing that prior to recording a corrective affidavit all interested parties must be notified of the intent to record a corrective affidavit and the right of each party to object; requiring that notice to correct an obvious error, and a copy of the accompanying affidavit must be provided to any owner of adjoining property, each party to the deed, deed of trust or mortgage, and the address for the property needing correction; if a local entity is a party, notice shall be sent to the attorney for the local entity or the local entity; if the state is a party, notice shall be served upon the Attorney General and the state agency that has or had possession of the property; establishing that if there is no objection within 30 days of service upon all designated parties to the deed, pertinent attorneys, the title insurance company and adjoining property owners, the corrective affidavit may be recorded; establishes the contents of the corrective affidavit; establishes the effect of the corrective affidavit once filed; requires a title insurance company to issue an endorsement to reflect the corrective affidavit; requires the clerk to record and index the corrective affidavit in the deed book; establishes that a recorded affidavit is prima facie evidence of the facts stated therein; requires associated costs be paid by the recording party; provides that a person who wrongfully records a corrective deed is liable for actual damage, reasonable costs, and attorney fees; provides that remedies under this section are not exclusive; and provides a format for the corrective affidavit and notice of an intent to correct an obvious description error.

Be it enacted by the Legislature of West Virginia:

ARTICLE 3. FORM AND EFFECT OF DEEDS AND CONTRACTS.

§36-3-11. Correcting Errors in deeds, deeds of trust, and mortgages; affidavit.


(a) As used in this section, unless the context requires a different meaning:

“Attorney” means any person licensed as an attorney in West Virginia by the West Virginia State Bar.

“Corrective affidavit” means an affidavit of an attorney correcting an obvious description error.

“Obvious description error” means an error in a real property parcel description contained in a recorded deed, deed of trust, or mortgage where:

(A) Such parcel is identified and shown as a separate parcel on a recorded subdivision plat;

(B) Such error is apparent by reference to other information on the face of such deed, deed of trust, or mortgage or on an attachment to such deed, deed of trust, or mortgage or by reference to other instruments in the chain of title for the property conveyed thereby; and

(C) Such deed, deed of trust, or mortgage recites elsewhere the parcel’s correct address or tax map identification number.

(D)  An “obvious description error” includes:

(i) An error transcribing courses and distances, including the omission of one or more lines of courses and distances or the omission of angles and compass directions;

(ii) An error incorporating an incorrect recorded plat or a deed reference;

(iii) An error in a lot number or designation; or

(iv) An omitted exhibit supplying the legal description of the real property thereby conveyed.

(E)  An “obvious description error” does not include:

(i) Missing or improper signatures or acknowledgments; or

(ii) Any designation of the type of tenancy by which the property is owned or whether or not a right of survivorship exists.

“Recorded subdivision plat” means a plat that has been prepared by a professional land surveyor licensed pursuant to W. Va. Code §§ 30-13A-1, et seq., of this code and recorded in the clerk’s office of the circuit court for the jurisdiction where the property is located.

“Title insurance” has the same meaning as set forth in W. Va. § 33-1-10(f)(4) of this code.

“Title insurance company” means the company who issued a policy of title insurance for the transaction in which the deed, deed of trust, or mortgage needing correction was recorded.

(b) Obvious description errors in a recorded deed, deed of trust, or mortgage purporting to convey or transfer an interest in real property may be corrected by recording an affidavit in the land records of the circuit court for the jurisdiction where the property is located or where the deed, deed of trust, or mortgage needing correction was recorded. No correction of an obvious description error shall be inconsistent with the description of the property in any recorded subdivision plat.

(c) Prior to recording a corrective affidavit, the attorney seeking to record the affidavit shall deliver a copy of the affidavit to all parties to the deed, deed of trust, or mortgage, including the current owner of the property; to the attorney who prepared the deed, deed of trust, or mortgage, if known and if possible; and to the title insurance company, if known, and give notice of the intent to record the affidavit and of each party’s right to object to the affidavit.

(d) For an affidavit to correct an obvious description error in a deed as defined and described in subsection (a)(3), notice and a copy of the affidavit shall also be provided to any owner of property adjoining a line to be corrected.

(e) The notice and a copy of the affidavit shall be delivered by personal service, sent by certified mail, return receipt requested, or delivered by a commercial overnight delivery service or the United States Postal Service, and a receipt obtained, to the last known address of each party to the deed, deed of trust, or mortgage to be corrected that:

(1) Is admitted to record in the office of the clerk of the county commission where the property is located and where the deed, deed of trust, or mortgage needing correction was recorded;

(2) Is contained in the deed, deed of trust, or mortgage needing correction;

(3) Has been provided to the attorney as a forwarding address; or

(4) Has been established with reasonable certainty by other means and to all other persons and entities to whom notice is required to be given.

(f) The notice and a copy of the affidavit shall be sent to the property address for the real property conveyed by the deed, deed of trust, or mortgage needing correction.

(1)  If a local entity is a party to the deed, deed of trust, or mortgage, the notice and a copy of the affidavit required by this subsection shall be sent to the county, city, or town attorney for the local entity, if any, and if there is no such attorney, then to the chief executive for the local entity. For the purposes of this section, the term “party” includes any local entity that is a signatory.

(2) If the State of West Virginia is a party to the deed, deed of trust, or mortgage, the notice and a copy of the affidavit required by this subsection shall be sent to the Attorney General and to the director, chief executive officer, or head of the state agency or chairman of the board of the state entity in possession or that had possession of the property.

(g)  The notice and a copy of the affidavit shall be served upon:

(1) All parties to the deed, deed of trust, or mortgage, including the current owner of the property;

(2) The attorney who prepared the deed, deed of trust, or mortgage, if known and if possible;

(3) To the title insurance company, if known; and

(4) To the adjoining property owners.

(h) If no written objection is received from any party disputing the facts recited in the affidavit or objecting to its recordation within 30 days after personal service or receipt of confirmation of delivery of the notice and copy of the affidavit, the corrective affidavit may be recorded by the attorney, and all parties to the deed, deed of trust, or mortgage shall be bound by the terms of the affidavit.

(i) The corrective affidavit shall:

(1) Be notarized;

(2) Contain a statement that no objection was received from any party within the period;

(3) Confirm that a copy of the notice was sent to all the parties; and,

(4) Contain the attorney’s West Virginia State Bar number.

(j)  A corrective affidavit recorded pursuant to this section operates as a correction of the deed, deed of trust, or mortgage and relates back to the date of the original recordation of the deed, deed of trust, or mortgage as if the deed, deed of trust, or mortgage was correct when first recorded.

(k) A title insurance company, upon request, shall issue an endorsement to reflect the corrections made by the corrective affidavit and shall deliver a copy of the endorsement to all parties to the policy who can be found.

(l) The clerk shall record the corrective affidavit in the deed book and, notwithstanding their designation in the deed, deed of trust, or mortgage needing correction, index the affidavit in the names of the parties to the deed, deed of trust, or mortgage as grantors and grantees as set forth in the affidavit. An affidavit recorded in compliance with this section shall be prima facie evidence of the facts stated in such affidavit.

(m) Costs associated with the recording of a corrective affidavit pursuant to this section shall be paid by the party that records the corrective affidavit.

(n) Any person who wrongfully or erroneously records a corrective affidavit is liable for actual damages sustained by any party due to such recordation, including reasonable attorney fees and costs.

(o) The remedies under this section are not exclusive and do not abrogate any right or remedy under the laws of the State of West Virginia other than this section.

(p) An affidavit under this section may be made in the following form, or to the same effect:

Corrective Affidavit

This Affidavit, prepared pursuant to West Virginia Code § 36-3-11, shall be indexed in the names of .............. (grantor) and ..............(grantee), whose addresses are ............... The undersigned affiant, being first duly sworn, deposes and states as follows:

1.  That the affiant is a West Virginia attorney.

2.  That the deed, deed of trust, or mortgage needing correction was made in connection with a real estate transaction in which .............. purchased real estate from .............., as shown in a deed recorded in the Clerk's Office of the Circuit Court of .............., in Deed Book ...., Page ...., or as Instrument Number ....; or in which real estate was encumbered, as shown in a deed recorded in the Clerk's Office of the Circuit Court of .............., in Deed Book ...., Page ...., or as Instrument Number ......

3. That the property description in the aforementioned deed, deed of trust, or mortgage contains an obvious description error.

4. That the property description containing the obvious description error reads:

......................................

.......................................

5. That the correct property description should read:

......................................

.......................................

6. That this affidavit is given pursuant to West Virginia Code § 36-3-11 to correct the property description in the aforementioned deed, deed of trust, or mortgage and such description shall be as stated in paragraph 5 above upon recordation of this affidavit in the Circuit Court of ...............

7. That notice of the intent to record this corrective affidavit and a copy of this affidavit was delivered to all parties to the deed, deed of trust, or mortgage being corrected pursuant to West Virginia Code § 36-3-1 and that no objection to the recordation of this affidavit was received within the applicable period of time as set forth in West Virginia Code § 36-3-1.

......................................

(Name of attorney)

 

......................................

(Signature of attorney)

 

......................................

(Address of attorney)

 

......................................

(Telephone number of attorney)

 

......................................

(Bar number of attorney)

 

The foregoing affidavit was acknowledged before me

 

This ......... day of .............., 20...., by

 

......................................

Notary Public

 

My Commission expires ...............

 

Notary Registration Number: ...............

 

(q) Notice under this section may be made in the following form, or to the same effect:

 

Notice of Intent to Correct an Obvious Description Error

 

Notice is hereby given to you concerning the deed, deed of trust, or mortgage described in the corrective affidavit, a copy of which is attached to this notice, as follows:

1. The attorney identified below has discovered or has been advised of an obvious description error in the deed, deed of trust, or mortgage recorded as part of your real estate settlement. The error is described in the attached affidavit.

2. The undersigned will record an affidavit to correct such error unless the undersigned receives a written objection disputing the facts recited in the affidavit or objecting to the recordation of the affidavit. Your objections must be sent within 30 days of receipt of this notice to the following address:

......................................

(Address)

 

......................................

(Name of attorney)

 

......................................

(Signature of attorney)

 

......................................

(Address of attorney)

 

......................................

(Telephone number of attorney)

 

......................................

(Bar number of attorney)


 

NOTE: The purpose of this bill is to establish a procedure for correcting obvious errors in deeds, deeds of trust, and mortgages, and establishing a format for the corrective affidavit and notice of an intent to correct an obvious description error.

Strike-throughs indicate language that would be stricken from a heading or the present law and underscoring indicates new language that would be added.

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