Celebrating 10 years! 2007-2017

What does it mean?

Here is some language from Section 5.028 of the Texas Proper jeffm08/01/17
Would it be the successor in interest to the interest convey 2tierreality08/02/17
Is there an assumption that the scrivener or one of a few gr vespucius08/02/17
My reading of it and based on my general knowledge of real e retard08/02/17
This is simple. You need to give notice to the heirs of the vespucius08/02/17
you need to give notice to the aunts and uncles and spouses dingbat08/02/17
Good response. I like your example. Bear in mind, A an jeffm08/02/17
But they may disagree with the changes you are making. vespucius08/02/17
I see you have trouble grasping basic concepts, so let's rev dingbat08/02/17
Still different. Let's say A conveys ALL of Blackacre to B. jeffm08/02/17
then what is being corrected? There's obviously a differe dingbat08/03/17
Yes, your point is well-taken. Client wanted to know if jeffm08/03/17
great to get this information. Yes, publication in a newspa dingbat08/03/17
This is an awkward attempt to say that notice and an opportu midlaw08/03/17
jeffm (Aug 1, 2017 - 10:43 pm)

Here is some language from Section 5.028 of the Texas Property Code regarding filing a correction instrument in the real property records to correct scrivener errors (I believe many states will have similar statutes):

"(2) if the correction instrument is not signed by each party to the recorded original instrument, send a copy of the correction instrument and notice by first class mail, e-mail, or other reasonable means to each party to the original instrument of conveyance and, if applicable, a party's heirs, successors, or assigns."

What is meant by the phrase, "if applicable, a party's heirs, successors, or assigns?"

Facts:

The parties to the original instrument are all dead. The grantors were my client's uncles and aunts and their respective spouses. The grantee was my client's father. Dad bought out his siblings' undivided interests which they inherited from their father (Grandpa).

The uncles' and aunts' heirs ought to have nothing to do with this. What is meant by "successors?"
Would it be the successor in interest to the interest conveyed? That would be Dad. If it means persons succeeding them by a will, I don't know what purpose would be served by sending the beneficiaries notice. What about "assigns?" "Assigns" as to what? The land? Again. That's Dad.

Client seems to be the only real party in interest, and he is the one preparing the correction instrument regarding his own property. My take on the language is that if it was some 3rd party, like a title company agent, making the correction instrument, Section 5.028 would require him/her to give notice to my client as the current owner of the property whose interest could be affected by the correction. However, since my client is the one making the correction regarding his own property, I see no purpose to serve in the notice provision.

No Texas cases have construed this, so I am open to others' thoughts on this.

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2tierreality (Aug 2, 2017 - 2:57 am)

Would it be the successor in interest to the interest conveyed?

-In theory yes, assuming for the sake of argument, some of the property interest was still owned by the original Grantor.

If it means persons succeeding them by a will, I don't know what purpose would be served by sending the beneficiaries notice.

-In theory, I suppose they would have the right to file some sort of document or claim to contest the correction.

However, since my client is the one making the correction regarding his own property, I see no purpose to serve in the notice provision.

-And if your client was the original Grantor and not the Grantee, then you would want to make sure that the correction does not, say, encroach upon property still owned by the original Grantor.

What is meant by the phrase, "if applicable, a party's heirs, successors, or assigns?"

-I assumed this was pretty common phrasing in "legalese". If the original Grantor is deceased, you need to give notice to the successors in interest. In the context of an estate, assuming there was one, it would be the beneficiaries under the will (pull and review the probate file). In the case of an intestate estate, it would be the heirs. In the context of a trust it would be the successor trustees.

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vespucius (Aug 2, 2017 - 3:31 am)

Is there an assumption that the scrivener or one of a few grantors would be filing this without the signatures and the scrivener or grantor gives notice to all heirs of the dead grantor?

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retard (Aug 2, 2017 - 4:10 am)

My reading of it and based on my general knowledge of real estate law is that you are required to notice the people who would have been in title (assuming no further alienation) but for the instrument being corrected. The rationale behind the notice to said formerly potential heirs is that by correcting the deed you might possibly be correcting an issue that could potentially have rendered the transaction void or voidable or that could impact formerly potential heirs' remaining rights or rights in other property retained by the grantor. Granted it might not perfectly fit your circumstance but the need for noticing former potential heirs regarding correction deeds likely came out of some sort of land scam and the legislature reacted.

as for assigns, it is partly legalese for heirs but also can be more. real property consists of a "bundle of rights". some of those rights, such as, and maybe relevant here because you are in texas, oil and mineral rights. or rights to leases and rents. or rights of way. etc. those are all assignable rights.

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vespucius (Aug 2, 2017 - 4:54 am)

This is simple. You need to give notice to the heirs of the grantors of the instrumemt.


"The uncles' and aunts' heirs ought to have nothing to do with this."

Incorrect. The grantee cant unilaterally reform or correct an instrument. They need notice of what you are doing.

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dingbat (Aug 2, 2017 - 12:40 pm)

you need to give notice to the aunts and uncles and spouses that were bought out. Everyone listed on the deed should get notice. If anyone listed on the deed is deceased, you need to send the notice to that person's heirs/beneficiaries/successors in interest.

Basically, send a notice to everyone who would have had any rights to the land if not for the deed you're correcting.


The reason is simple. The deed you're correcting transferred rights from one person to another. The correction may alter the transfer of those rights. The correction may affect those rights and therefore they must be given the opportunity to challenge that correction.

Think of it this way. X deeded the west half of blackacre with mineral rights to A, the east half of blackacre without mineral rights to B, and the mineral rights to the east half to C.

Now you want to file a corrected deed to fix a scrivener's error that X should have given the west half of blackacre WITHOUT mineral rights to A, the east half WITH mineral rights to B, and the mineral rights to the west half to C.

Imagine if this did not require notice to A or C, and 50 years later (way past statute of limitations) it turns out there's aluminum worth $100k per year in the west half, and oil worth $300k per year in the east half.
If the "correction" was improper, A just got screwed out of $300k, and C got screwed out of $200k

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jeffm (Aug 2, 2017 - 1:39 pm)

Good response. I like your example.

Bear in mind, A and C get screwed. Yet, why are we dealing with X's heirs/beneficiaries? It seems your example would favor giving notice to A and C. They would be X's assigns (but not heirs/beneficiaries). Yet, in my case, Client is the only assign. The aunts and uncles conveyed the entirety to Dad with no reservations of any interests.

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vespucius (Aug 2, 2017 - 2:04 pm)

But they may disagree with the changes you are making.

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dingbat (Aug 2, 2017 - 3:11 pm)

I see you have trouble grasping basic concepts, so let's reverse this.

A conveys the west half of blackacre, with all mineral rights to B. Oil is discovered on the eastern half. Now B is trying to get a correction saying that it should have been the east half of blackacre. Do you think B should be able to make that correction without notifying A?

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jeffm (Aug 2, 2017 - 5:24 pm)

Still different. Let's say A conveys ALL of Blackacre to B. Then, what?

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dingbat (Aug 3, 2017 - 11:47 am)

then what is being corrected?

There's obviously a difference between the original deed and the corrected deed, so what exactly is the mistake?
Was the deed made out to George W. Bush, and the correction to George W.W. Bush? Because now George W. Bush might object.

But without getting into the nitpicky weeds, the statute is in place to make sure that someone can't merely file a correction that could potentially impact another person's rights without notifying said person of those rights. There may be situations where no one's actual rights are affected, as you insist, but that's like saying you don't need to stop at a red traffic light because sometimes there aren't any other cars coming. The statute exists because a correction has the potential of screwing someone over.

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jeffm (Aug 3, 2017 - 2:39 pm)

Yes, your point is well-taken.

Client wanted to know if he had a boundary issue with a neighbor (not related at all to any of the uncles/heirs, land, etc.).

He has 5 adjoining tracts, with Tract 1 to the far West and Tract 5 to the far East. He was concerned about Tract 5 and the neighbor to the East.

I research title.

Tracts 1 and 2 came from Uncles and Aunts, through Dad, to Client. Tracts 3 - 5 came from other people, through Dad, to Client.

It turns out Tract 5 has no boundary issue with neighbor to east. Client is satisfied.

However, in plotting metes and bounds in a polygon-drawing tool, I find issues with Tracts 1 and 2. Damn thing isn't shaped anything like my client's tract, and the polygon won't even close. I start tracing between earlier and later deeds to find scrivener errors. One says "East" when it should have said "West." One says "1248 feet" and the other says "7248 feet." One says "Beginning at the Northwest corner of Tract 1" when it is clear it should have begun at the Northeast Corner of Tract 1.

With the corrections, we have a nice-looking tract, in proper proportion, and matching what is shown on the maps at the tax appraisal district.

The hang-up isn't with giving notice to heirs/successors, etc. It is with finding them. A lot of work. Some out of state. Can't pragmatically go and track everyone down like that.

The statute says notice must be given by mail, email or other reasonable means. I am leaning toward publication in the local newspaper to all heirs, successors and assigns of aunts and uncles (all of the aunts/uncles are dead). Given the non-controversial nature of the corrections, I could at least make the argument that publication was reasonable, in lieu of spending thousands to "hopefully" identify everyone and track them down. The process of correction would not be economical otherwise, and in reality, nobody is affected anyway, and I don't think anyone would ever complain. Client has occupied property for decades and paid taxes. Corrections match appraisal district plat.

This is simply being done to prevent perpetuation of the description errors in the future by other lawyers. If there is nothing to show them the proper description, they will just keep screwing it up.

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dingbat (Aug 3, 2017 - 3:15 pm)

great to get this information.
Yes, publication in a newspaper is reasonable notice if the heirs cannot reasonably be traced down.


Now that that's out of the way, the reason this would require notice is that your assumptions as to the corrections, though perfectly reasonable, theoretically could be wrong, and so any affected rights-holder should be given notice to challenge the correction.

But yeah, I get stuff like this from time to time. Had a case where using aerial shots, GIS, etc. just couldn't match up. I don't do real estate or land litigation, but do often need copies of clients' old deeds.

Why, oh, why, do people carve up their land in weird fashions? If the original tract is a square and there's no compelling feature (river, railway, road) what on earth possesses someone to cut out a trapezoid?

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midlaw (Aug 3, 2017 - 1:10 am)

This is an awkward attempt to say that notice and an opportunity to be heard must be provided to all interested parties. That's almost certainly how it will be construed. If someone without an actual interest tries to object later, they won't succeed.

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