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Wake County News > Posts > New Law Concerning Corrections Process Of Recorded Title Instruments Comes Into Effect On August 31st
August 27
New Law Concerning Corrections Process Of Recorded Title Instruments Comes Into Effect On August 31st

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August 27, 2018

Dear Wake County Register of Deeds eRecording Submitters:

In Wake County approximately 3.5% of real estate closings are corrected after the fact by the closing attorney or some other person.

Corrections are commonly made by recording an affidavit of Notice of Nonmaterial Typographical or Other Minor Error pursuant to NCGS 47-36.1.

Effective August 31, 2018 a new law comes into effect amending NCGS 47-36.1(a) and adding a new Section 47-36.2. The change makes a distinction between nonmaterial typographical minor errors and obvious description errors. For the former, Section 47-36.1 continues to apply, but for the latter the process of the new Section 47-36.2 applies. The applicable session law is S.L. 2017-110 and it can be found here.

Determining, in the first instance, whether an error is minor and, secondly, whether it is a nonmaterial typographical error, or an obvious description error is for the attorney or other submitter of a curative instrument. This is a fact-intensive determination. The Register of Deeds Office does not make judgments as to whether the submitter has selected the most appropriate curative process or instrument.

The new law causes no change in the way the Wake County Register of Deeds Office processes curative affidavits. Affidavits under both of sections 47-36.1 and 47-36.2 will be given document type “Affidavit” and will be indexed in the same manner as they are indexed now. Submissions will not be rejected based on the statutory basis chosen by the submitter. The acceptance of an instrument for recording does not constitute ratification of the submitter’s choices.

Some closing points.

  1. A recent review of a sample of a few hundred Wake County recorded curative instruments indicated that a large majority of affidavits recorded pursuant to the current Section 47-36.1 appear to pertain to minor errors and were and will be covered by Section 47-36.1. It appears a minority of the sample instruments were curing obvious description errors as defined by new Section 47-36.2, and, in a few instances, it was debatable whether the corrections were obvious, nonmaterial or minor in the first instance.
  2. Nothing in the new statute prohibits employing existing more conservative means of correcting errors, such as executing and recording additional deeds. Such measures might be accomplished more easily than following the process of new Section 47-36.2.
  3. The new law does not change corrective affidavits made by a notary public under NCGS 47-36-1(c). If submitting such an affidavit, it would be in the submitter's interest to take care to make the nature of the instrument clear in the title of the affidavit.
  4. Submitters should comply with the statutory requirement that the title of a corrective notice affidavit conspicuously identifies that it is a corrective notice or scrivener’s affidavit.

 

Charles P. Gilliam

 

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Wake County Register of Deeds


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