Avoid Common Real Estate Document Mistakes
Creating a legal document? Congratulations! And don’t hurry. Attention to punctuation, grammar, and formatting can make a serious difference, both in asset ownership and in estate planning. Checking a legal instrument carefully is essential.
What a Difference a Keystroke Makes
A deed transferred to John, Michelle, and Denny would make each of the three named people tenants in common. The commas between the names ensure each individual stands alone. But a deed transferred to “John and Michelle, and Denny” signifies that John and Michelle are a pair, getting half the asset together. The other half will belong to Denny.
What if the deed is drafted to transfer title to John, Michelle and Denny? Are Michelle and Denny each receiving a share of the real estate asset? Or are they taking one share together?
If the drafter inserts a comma after Michelle’s name, it becomes clear that Michelle and Denny each get their own, separate shares of the asset. But without the comma, the situation changes. As you might imagine, plenty of lawsuits have arisen to sort out badly punctuated deeds. One tiny comma can change the ownership shares, the estates, and the tax responsibilities for all deed holders.
The same goes for wills. Say you leave your home “in equal shares to John, Michelle, Denny; and my longtime gardener, Cass. The semi-colon after Denny’s name is a stronger break in a sentence than the earlier commas. It separates Cass from the other three recipients. If all four recipients are to hold equal shares of the asset, why are three people on one side of the semi-colon, while just one is on the other side of it? Do John, Michelle, and Denny receive one share together, or one share each? Would a judge look strictly at punctuation, giving Cass half the asset? Possibly. Another judge might try to follow the will maker’s intent.
☛Are multiple recipients of a deed sharing the property in equal parts? Or will they own unequal shares of the real estate asset? At the heart of the answer is how the deed is vested. Learn more here.
Another pesky issue is the use of “among” (which indicates multiple people sharing an asset) and “between” (which suggests the intention to divide into two). Punctuation and grammar choices place things in order, combine individuals and shares of assets into groups, and indicate the triggers for future legal events to occur.
Using the Right Legal Description
Properties are precisely identified by their legal descriptions. Each time a property passes to a new owner, the legal description should remain the same. When preparing a legal description, then, be sure to use the exact legal description that appears on the most recent deed to the property. This requires attention to detail and multiple proof readings of the text. Every keystroke, including every punctuation mark, has to match the previous deed.
Modern Real Estate Practice by Fillmore W. Galaty et al. is an oft-republished and widely read textbook on real estate practice and principles. The book states:
Legal descriptions should be copied with extreme care. An incorrectly worded legal description in a sales contract may result in a conveyance of more or less land than the parties intended. Often, even punctuation is extremely critical.
Title challenges can result in the future, the textbook explains, for a later buyer. This is so, even if the document is fixed before closing.
How is a document fixed? It depends if you’re dealing with something minor like a typo or ambiguous phrase, or something more substantive.
- The scrivener affidavit is appended to a deed to correct a minor ambiguity, when it’s obvious what the drafter meant. Clarifying the legal description does not materially change it. State law strictly limits its use, and the affidavit refers to the relevant state law provision. Requirements (check with the county recorder of deeds) may include a cover letter of explanation by the original deed drafter, certified under penalty of perjury, and notification to interested parties.
- The correction deed is an actual replacement deed. It’s used to declare substantive changes to the property description, such as a corrected lot number or an erroneous compass direction. A correction deed repeats and corrects the information recorded on the incorrect deed. No one may use this provision to add owners or create new interests. Check with the county recorder of deeds for notification and consent requirements.
If recording a deed correction is not possible, then deed reformation may be necessary. If the court determines that this action is appropriate, it will issue a reformed deed.
☛ View the Steps to Create and Record a Correction Deed here.
For Proper Recording, Even Type Size Matters
Pender County, NC states the North Carolina rule that font size must be at least 10 points to be deemed legible. (Legibly writing with a black pen is also an option.) There are margin rules, and a rule against double-sided printing. The Register of Deeds in each Georgia County, NC collects an extra $25 in total fees for recording certain documents that don’t comply with the rules. Many counties have these “non-standard” recording fees. There are plenty of other rules, too. Some counties require envelopes while others do not, and so forth.
People’s eyesight must be better in some other states. The smaller 9-point font is the minimum in Florida, for example.
Virginia accepts 9-point font, too. Last names must be underscored or capitalized (as per the Code of Virginia and county-specific rules), and deed must state who prepared them.
☛ Properly filling out a deed, with the correct language and formatting, is simply a matter of checking the state and county rules and customs. We’ve got you covered. Find the Recorder of Deeds and specific information for your county and state on Deeds.com.
Takeaway: Good Deeds Can’t Be Rushed
With real estate, the devil is in the details — even details as hard to find as a missing comma. Missing or stray punctuation can muddle the meaning of a document. Ambiguities invite legal challenges and unpredictable outcomes. A court’s decision could rest strictly on the grammatical structure of a sentence (or fragment). Alternatively, a judge could consider the context and determine that generally unsound grammar on a document warrants an attempt to follow the likely intent of the drafter.
To avoid disputes, clarity is essential in real estate and estate planning instruments. Computer-generated paperwork can save time while ensuring consistency and precision. That said, every person is an individual, and each legal document must be tailored to the transaction.
When in doubt, have a lawyer check each document before recording. And then go over everything again, asking questions. Lawyers are human, too.
Supporting References
Atty. Gary M. Singer, chair of the Real Estate Section of the Broward County Bar Association, in the South Florida Sun-Sentinel via Leader-Telegram, Naming the Heir to the Home (Dec. 25, 2021).
Thu-Huong Ha for Quartz: Willingly Flawed – The Common Grammar Mistakes in Wills That Have Landed Families in Court (updated Apr. 19, 2017).
Fillmore W. Galaty et al., Modern Real Estate Practice.
Photo credits: LinkedIn, via Pixabay.