Bulletin: NM2016003

Dear Associates:

Please be advised that the recently enacted New Mexico Scrivener’s Error Affidavit Law (Senate Bill 146-2016 Legislature) becomes effective July 1, 2016.

Senate Bill 146 authorizes the use of a scrivener’s error affidavit to correct certain minor errors in deeds, mortgages and other instruments affecting title to property.  If corrections are made in accordance with the new law, they have the effect of correcting the original instrument, without the parties to the original instrument having to execute a corrected instrument.  An instrument corrected with a scrivener’s error affidavit has the same effect as the original instrument. 

A. What kinds of errors may be corrected?

Only the following errors may be corrected through a scrivener’s error affidavit:

(1) a legal description, such as the omission of one or more words;

(2) the name of a subdivision;

(3) the recording information for a plat;

(4) a metes and bounds description, if bearings or distances are omitted and as long as the correction does not add or remove land to the land being described;

(5) the spelling of a name;

(6) a middle initial, if incorrect or missing;

(7) a grantee's address, if omitted in a

deed; or

(8) the legal type or state of domicile of a corporation or other legal entity.

No other errors may be corrected with the scrivener’s error affidavit.

B. Who may execute and deliver the Scrivener’s Error Affidavit

Only the persons specifically designated in the law may execute and deliver a scrivener’s error affidavit. Who may execute and deliver the affidavit depends on the document to be corrected.

For Deeds or other legal documents prepared in conjunction with the closing of a transaction affecting title to real property:

The licensed attorney who prepared the original instrument; or

The title company or title insurer employee who completed the form of the original instrument, if employed by the title company or insurer at the time the correction is to be made and provided such person is licensed as a title agent under the New Mexico title insurance law.

For Mortgages:

A licensed attorney who represents the lender named in the mortgage or deed of trust; or

A current employee of the lender named in the mortgage or deed of trust.

For Powers of Attorney or Easements:

A licensed attorney who represents the principal or grantor of the original instrument; or

The principal or grantor of the original instrument.

For Any Other Writing Affecting Title to Real Estate:

A licensed attorney who represents a party to the original instrument; or

The licensed attorney who prepared the original instrument.

C. Contents of the Scrivener’s Error Affidavit

The law establishes the requirements for the contents of the scrivener’s error affidavit, including:

• That the affiant has personal knowledge
• That the affiant sign under oath
• That the form be conspicuously named “scrivener’s affidavit” or “scrivener’s error affidavit
• The name of the person who prepared the original instrument
• The names and capacities of all parties to the original instrument
• Recording information for the original instrument
• A brief description of the error to be corrected
• The correct information 

The new law provides a sample form of affidavit. If that form is used, it will be deemed to comply with the requirements of the new law. You can find a copy of the affidavit form in the New Mexico forms on Virtual Underwriter (click here). If you encounter an affidavit that is different from the sample form, please contact your underwriter.

D. Effect of Scrivener’s Error Affidavit

A scrivener’s error affidavit that substantially complies with the new law:

• Shall be recorded by the County Clerk
• Indexed by the County Clerk under the names of the original parties to the corrected instrument
• Be admissible as evidence to the same extent as any other instrument involving the original instrument to which it relates

Although the new law does not specify when the corrected instrument becomes effective, in the view of Stewart Title Guaranty Company, you may treat the correction as effective as of the date of the original instrument. If, however, you locate items that have attached to the property between the date of the original instrument and the date of the corrected instrument, please contact your underwriter.

If the scrivener’s error affidavit cannot be used to correct a particular error, please continue to ask the original parties to an instrument that needs to be corrected to re-execute and re-acknowledge a corrected instrument in order to effect a proper correction. Generally, Stewart Title Guaranty Company will treat a correction made in this manner as being effective as of the date of the correction.   

If you have any questions relating to this or other bulletins, please contact a Stewart Title Guaranty Company underwriter.

For on-line viewing of this and other bulletins, please log onto www.vuwriter.com.