Bulletin: CO000039

Dear Associates:

Effective August 5, 2003, HB 1194 amends C.R.S. §38-35-116 (Variances in Names in Instruments Affecting the Title to Real Property) by removing the requirement that a legal instrument affecting title to real property must be recorded for three years in certain cases or twenty years in other cases before a significant variance in the name is presumed to be the same person. C.R.S. §38-35-116 establishes the presumption that the person named in both instruments is the same person until such time as the contrary appears. The variance in the names must be one of the following for the presumption to apply:

• The full first name appearing in one and only the initial letter of that first name appearing in the other. (Example: Instrument 1- Jane Dow; Instrument 2- J Dow);
  
  
• A full middle name appearing in one and only the initial letter of that middle name appearing in the other (Example: Instrument 1- James Jacob Doe; Instrument 2- James J Doe);
  
  
• The initial letter of a middle name appearing in one and not appearing in the other (Example: Instrument 1- James J Doe; Instrument 2- James Doe); and
  
  
• A full middle name appearing in one and not appearing in the other (Example: James Jacob Doe; Example 2- James Doe).

Remember that anytime a discrepancy in the names appears in various instruments affecting title to real property, there is immediately a question of identity. If the material variation in names is too great, then the presumption of identity does not exist.

COMPANY POLICY: Effective August 5 2003, there is no longer a waiting period nor is a corrective document necessary for the statutory presumption set forth above to apply. If one or more of the situations set forth above exist, nothing further needs to be done by the agent. If you have any questions regarding a variance in names in instruments effecting title to real property, please contact your local Underwriter.

Effective August 5, 2003, HB 1194 amends C.R.S. §38-35-109 (Validity of Unrecorded Instruments-Liability for Fraudulent Documents) by adding a new subsection, which authorizes a qualified person to file an affidavit attesting to facts concerning a recorded instrument that affects the title to real property. When recorded, the affidavit described in this subsection constitutes prima facia evidence of one or more of the following:

• The name, age, identity, residence or service in the armed forces of any party;
  
  
• Whether the land embraced in any conveyance or any part of such land or right therein has been in the actual possession of any party or parties within the chain of title;
  
  
• If furnished by a registered surveyor, a statement or survey that reconciles conflicts and ambiguities in descriptions of land in recorded instruments;
  
  
• A scrivener's error.

COMPANY POLICY: The Affidavit referred to above CANNOT be prepared or filled out by any issuing office of Stewart Title Guaranty Company. If title examiners discover this kind of Affidavit in examination of title, contact your local underwriter and they will deal with each Affidavit on a case by case basis.

Consistent with these statutory changes, remember that you still may obtain a correction on the original deed or Deed of Trust to correct or amend a typographical or scrivener's errors in instruments. However, if there is a substantial change in the name, you must require a new Deed or Deed of Trust or reformation of the Deed of Trust. Most importantly, any change or correction to a Deed requires the consent of the Grantor to be effective. Additionally, a correction to a Deed of Trust may require a signature of both borrower and lender. In some cases, the Courts have construed the act of simply obtaining a certified copy of a recorded instrument, making the correction on the face of the instrument and re-recording the instrument WITHOUT THE GRANTOR'S CONSENT, as fraud. Therefore, YOU MUST ALWAYS OBTAIN THE GRANTOR'S CONSENT to any changes or corrections to an instrument on the face of the instrument. If you have any questions, please contact your local Underwriter.