On our last blog post we covered “cloudy” titles, or clouds on title, and some effective ways to avoid or cure them. In this post we’re going to cover one of those potential solutions: the scrivener’s affidavit.
A scrivener’s affidavit is a common method of “curing” a sick or cloudy title. To break the term down even further, an affidavit is a written statement of facts made by a person who has personal knowledge of those facts. A scrivener’s affidavit is an affidavit made by a scrivener or (in more modern terms) the preparer of the deed. In layman’s terms, when a deed has certain technical defects or factual inaccuracies, a scrivener’s affidavit is a good way to fix those defects and inaccuracies.
For example, if a deed fails to state the marital status of an individual grantor a scrivener’s affidavit can supply the missing marital status. If a grantor’s name is given as ABC company but omits the “Inc” if it’s a corporation, or the “LLC” if it’s a limited-liability company, then the scrivener’s affidavit can supply the missing abbreviation. But the most common use of a scrivener’s affidavit is to correct a typographical error in the legal description. If a deed description has an incorrect lot number or has a typo in the course or distance call in the description, a scrivener’s affidavit is an easy way to correct the error.
One thing a scrivener’s affidavit can’t fix is use of the wrong name for the grantee in a deed. For example, suppose a grantor in a deed intends to convey the property to John Jones, but inadvertently names Sally Smith as the grantee. A scrivener’s affidavit explaining that the grantee should have been John from the beginning doesn’t fix the mistake. A scrivener’s affidavit in that situation would be no substitute for obtaining a deed back from Sally Smith (to clear the title) and giving John a correct deed.
Since this is an official written statement under oath, a scrivener’s affidavit should be signed in front of a notary public and recorded at the courthouse with the real property records.
Be sure to consult with an attorney for more detailed information on this topic, and if your client has questions, be sure to send them to Attorney's Title Group! Attorney's Title Group is an Arkansas title and closing company assisting customers with residential and commercial real estate transactions, title insurance, document preparation and review, 1031 exchange services, and more. To learn more about our over-the-top customer service, click here.