HB4576 S JUD AM #1 SFBM JUD

SENATE COMMITTEE ON JUDICIARY

COUNSEL: Laura Goldfarb Goins

FLOOR BOOK MEMO

COMMITTEE AMENDMENT #1 FOR HOUSE BILL NO. 4576

BY: Delegate Shott, Delegate Nelson, Delegate Lovejoy, Delegate Canestraro, Delegate Steele, Delegate Byrd, Delegate Pyles

SHORT TITLE: Establishing a procedure for correcting errors in deeds, deeds of trust and mortgages

DATE INTRODUCED: January 28, 2020

CODE REFERENCE: W. Va. Code §36-3-11 (new)

PROPOSED LAW PRESENTED TO THE COMMITTEE:

This bill adds a new code section to provide that obvious description errors (which is defined in the bill) in a recorded deed, deed of trust, or mortgage may be corrected by recording an affidavit in the county land records.

Prior to recording a corrective affidavit, notice of the intent to record the affidavit, of each party’s right to object, and a copy of the affidavit must be sent to specified persons.

            The bill specifies notice delivery requirements.

If no written objection is received within 30 days, 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.  The county clerk shall record the corrective affidavit and index the affidavit in the names of the parties to the deed, deed of trust, or mortgage.  An affidavit recorded in compliance with the new code section shall be prima facie evidence of the facts stated in such affidavit

The bill sets forth the content requirements of a corrective affidavit and provides a corrective affidavit recorded pursuant to the new code 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 instrument as if the instrument was correct when first recorded.

The bill requires a title insurance company to issue an endorsement to reflect the corrections made by the corrective affidavit upon request.

Costs associated with the recording of a corrective affidavit are to be paid by the party that records the corrective affidavit, and 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.

The bill provides that the remedies under the new code 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.

Lastly, the bill sets forth the form of corrective affidavit and notice.

FISCAL NOTE: No

GOVERNMENT AGENCIES AFFECTED:

EFFECTIVE DATE: 90 days

COMMITTEE ACTION: The Committee on the Judiciary recommended that strike and insert amendment for H.B. 4576 be reported to the full Senate with recommendation that it do pass.