New Mexico Adopts Requirements for Scrivener’s Error Affidavit

• March 11, 2016
• Julio Suarez

Effective May 18, 2016 New Mexico adopted requirements for a scrivener’s-error affidavit detailing a definition, qualified individuals who may submit the document, requirements for admissibility, and applicability.
DEFINITION

 

• A legal description;
• The name of a subdivision;
• The recording information for a plat;
• A metes and bounds description. However this is only applicable if:

 

1. Bearings or distances are omitted; and
2. The correction does not add or remove land to the land being described;

 

• The spelling of a name;
• A middle initial;
• A grantee’s address, if omitted in a deed; or
• The legal type or state of domiciles of a corporation or other legal entity.

QUALIFIED INDIVIDUALS

 

1. For an error on a deed or other legal document prepared in conjunction with the closing of a transaction affecting the title to real property:
   1. The licensed attorney who prepared the original instrument; or
   2. The employee or agent of the title insurer, if the individual is still employed by that insurer or agent and is licensed under the New Mexico Title Insurance Law.
2. For an error on a mortgage or deed of trust:
   1. A licensed attorney who represents the mortgagee or beneficiary named in the form of the original instrument;
   2. A current employee of the mortgagee or beneficiary named in the form of the original instrument.
3. For an error on a power of attorney or an easement:
   1. The principal or grantor of the original instrument.
4. For an error on any other writing affecting title to real estate:
   1. A licensed attorney who represents a party to the original instrument; or
   2. The licensed attorney who prepared the original instrument.

AFFIDAVIT REQUIREMENTS
In order for a scrivener’s affidavit to be found admissible there are several requirements that the affidavit and the affiant must meet.
Firstly, the affidavit must state that the affiant has actual knowledge of and is competent to testify to the facts in the affidavit. Secondly, the affidavit must contain an acknowledgment that the affiant is testifying under penalty of perjury, conspicuously identify in its title that it is a “scrivener’s affidavit” or “scrivener’s-error affidavit” and contain the following information concerning the corrected original document:

1. The name of the person or entity that prepared, completed or was associated with the original instrument;
2. The names and capacities of all parties to the original instrument;
3. The recording information including recording date and document, instrument or reception number (if available) of the original instrument;
4. A brief description of error in the original document being corrected;
5. The correct information to substitute the errors being corrected.

Lastly, the affidavit must be sworn to and acknowledged by the affiant before an individual authorized to administer an oath under New Mexico law.
RECORD KEEPING AND ADMISSIBILTY
The Act also impacts record keeping. A scrivener’s-error affidavit which complies with the requirements will be recorded in the land records of the county in which the real property is located. In addition, it will be indexed in the general index under the names of the original parties to the instrument and admissible as evidence. It will be admissible to the same extent as a deed or other recorded instrument in an action involving the original instrument to which it relates or the title to the real property affected by the original instrument.
APPLICABILITY
This legislation only affects the requirements for an admissible scrivener’s-error affidavit. Other lawful forms of correcting errors in writings affecting title to real estate such as corrective deeds are still permissible. It also does not require a change to the records of the county assessor or the county treasurer.
EXAMPLE
The scrivener’s-error affidavit drafted and submitted by an individual seeking its admissibility must be substantially akin to the following example:
SCRIVENER’S-ERROR AFFIDAVIT
I, __________________________ (“Affiant”), being first duly sworn, state under oath:

1. I am duly authorized to execute this Affidavit, have actual knowledge of the matters set forth within this Affidavit and am competent to testify in a court of law about the facts stated in this Affidavit.
2. I am eligible and qualified under New Mexico law to be the Affiant of this Scrivener’s-Error Affidavit because of the following facts:(Explain qualifications for eligibility)
3. The instrument containing the error that this Affidavit intends to correct is as follows: “Original Instrument” (Describe the instrument containing the error)
4. The purpose of this Affidavit is to provide notice of the scrivener’s error described in this Affidavit and to correct the Original Instrument.
5. The Original Instrument was prepared by, completed by or associated with: ______________.
6. The names and capacities of the parties to the Original Instrument are: ________________________
7. The recording information, including the recording date and document, instrument or reception number for the Original Instrument, is as follows:
   1. Date of Recording __________
   2. Recording Information_________________________,
   3. In the real property record of ____________ County, New Mexico.
8. A brief description of each error in the Original Instrument that this Affidavit is designed to correct: _______________________________________.
9. The correct information to be inserted or reflected in or the information to be removed from the Original Instrument is as follows:___________________________.
10. This Affidavit is made under penalty of perjury.

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