By James L. Windsor, Real Estate Claims & Title Insurance Solutions

The Governor of Virginia recently signed two bills that will significantly affect real estate law in Virginia. Copies of both bills are attached.

Senate Bill 116 creates a new statute, Virginia Code Section 55-109.2, under which a Virginia licensed attorney may correct an obvious property description error in a recorded deed or deed of trust by recording a notarized corrective affidavit, subject to certain limitations. First, the parcel must be shown as a separate parcel on a recorded subdivision plat. Second, the error must be apparent by reference to other information on the face of the deed or deed of trust, including any attachments thereto, or by reference to other instruments in the chain of title for the parcel. Third, before recording the corrective affidavit, the attorney must send a copy of it to the parties to the deed or deed of trust; to the current owner of the property; to the attorney who prepared the incorrect document, if known and if possible; to the title insurance company, if known; and to adjoining landowners if a boundary line issue is involved. Along with the affidavit, the attorney must provide notice of intent to record the affidavit and notice of the recipients’ right to object. If the attorney does not receive a written objection within 30 days, the attorney may record the corrective affidavit. A recorded corrective affidavit relates back to the date of the original recordation of the deed or deed of trust being corrected. The statute includes a form corrective affidavit that may be used in order to comply with the statute’s requirements. The statute is effective July 1, 2014.

House Bill 763 amended ten statutes related to recordation of instruments involving real estate. A court clerk now may reject any writing submitted for recording that does not include a cover sheet (as prescribed by statute and described below), unless as to each party to the writing the surname only is underscored or in all capitals where it first appears, along with each party’s status as grantor, grantee or both, as applicable; each page is numbered consecutively; the amount of consideration and the actual value of the property conveyed is stated on the first page; and any exemption from recordation taxes is claimed clearly on the first page. If a cover sheet is used, it shall include the foregoing items as well as the tax map or parcel identification number, if applicable, and the name and address of the person to whom the instrument is to be returned after recording. The responsibility for ensuring the accuracy of the information on the cover sheet lies with whoever prepares it and the clerk of court may rely on the information provided therein. The cover sheet shall not be considered a part of or affect the interpretation of the recorded instrument. The effective date of these amendments related to cover sheets is delayed until January 1, 2015, so that the Executive Secretary of the Supreme Court of Virginia can develop a form cover sheet that complies with the new statutory requirements.

Other changes made by House Bill 763 include that: a writing accepted for recordation shall be deemed validly recorded for all purposes; a court clerk may refuse to accept for recording any instrument that contains a social security number and is immune from suit for recording a document unless the clerk was grossly negligent or engaged in willful misconduct; an entity that is named as a trustee on a deed of trust no longer has to have an office in Virginia; a limited liability company, partnership or other entity may serve as trustee under a deed of trust; and for a credit line deed of trust, an identified party acting as agent of the lender or the secured party is the beneficiary of the credit line deed of trust.  – Jim Windsor

The contents of this publication are intended for general information only and should not be construed as legal advice or a legal opinion on specific facts and circumstances. Copyright 2024.