Five tips every real estate practitioner should know about defective deeds.

• Author: Kalmanson, Stacy O.
• Position: Florida

In the modern world of real estate, time constraints and urgency seem to lurk at every turn. As a result of these two factors, errors in the preparation of deeds abound. Title examiners and real estate practitioners frequently encounter defects in deeds in the chain of title and make requirements for corrections or other remedies where necessary. Although some errors in deeds are harmless and may be ignored, others are fatal to the conveyance and require corrective measures. This article discusses five tips every real estate practitioner should know about defective deeds: 1) harmless errors; 2) curative statutes; 3) corrective deeds; 4) constructive notice; and 5) homestead concerns.

Tip 1: Harmless Errors

When a practitioner encounters an error in a deed, the first determination should be whether the error is harmless or whether the error is fatal to the conveyance or results in failure to provide constructive notice of the conveyance. A harmless error will not prevent the passage of title or the legal recordation of the instrument and may be ignored altogether, although the error should be corrected on an instrument in a current transaction. Although not an exhaustive list, we will discuss two examples of common harmless errors.

One example of a harmless error is where a call in a metes and bounds description states an incorrect distance or angle, but the distance or angle is monumented to or along a monument or other point that, under a rule of construction, controls the distance or angle. To illustrate, a call in the description states "run thence north 89 degrees east along the north line of Jones Avenue a distance of 100 feet to the northeast corner of said lot one." The north line of Jones Avenue is actually north 87 degrees east. The error in the angle is harmless because the angle yields to the monumented north line of Jones Avenue (north 87 degrees east). In fact, the call could actually leave out the angle completely and still be sufficient; "run thence east along the north line of Jones Avenue a distance of 100 feet to the northeast corner of said lot one."

Although the lot lines and corners of platted lots are not actually monuments in the true sense, as a rule of construction, the lot lines and corners of platted lots may also be used to control the angles and distances in legal descriptions. So, if the actual footage of the above call is 102 feet, that error is also harmless because the call distance yields to the actual distance to the northeast corner of said lot one.

Another example of a harmless error is the lack of a date, or an incorrect date on an instrument, such as a deed or mortgage. Florida Uniform Title Standard 3.6 states "[t]he fact that an instrument such as a deed or mortgage is undated, bears a date subsequent to the date of the acknowledgement, or bears an impossible date does not affect the validity of the instrument as a muniment of title." It should be noted that the true date of a valid deed is when the deed is delivered to the complete control of the grantee, with no conditions or contingencies. (1)

Tip 2: Curative Statutes

Deeds that contain defective acknowledgements or are missing witnesses may be cured over time. The two primary curative limitations statutes (F.S. [section] 95.231 and F.S. [section] 694.08) cure the defects of missing witnesses and defective acknowledgements. It should be noted that these statutes do not cure a total lack of acknowledgement or a void acknowledgement. The curative time period under F.S. [section] 95.231 is five years after the date of recording. F.S. [section] 95.231 cures defects in which the person (2) (i.e., grantor) was the actual owner of the property.

In situations where a person conveys land in an official or representative capacity (e.g., an attorney-in-fact or trustee), F.S. [section] 95.231 does not apply, but it may be possible to rely on F.S. [section] 694.08 if two requirements are met. First, the deed must be of record for the statutorily required seven years. Second, one or more subsequent conveyances of the subject property by the parties claiming under the instrument must be made and the subsequent instrument must evidence the grantor's intent to either convey the property or to authorize the conveyance.

For example, a deed executed by an attorney-in-fact is missing a witness. The defective deed was recorded in 1999. A subsequent conveyance was made in 2001. In 2007, the grantee under that 2001 deed entered into a contract to sell the property. Because more than seven years has passed and a subsequent conveyance was made, the curative statute "cures" the missing witness on the 1999 deed.

Tip 3: Corrective Deeds

A corrective deed is appropriately used where a defect in the previous deed caused title not to pass to the grantee. An insufficient legal description of the property, a lack of subscribing witnesses, and failure to obtain joinder of the grantor's spouse on a deed to homestead property are a few examples of this type of defect. Where legal title remains in the...