SENATE FLOOR SUBSTITUTE FOR
SENATE BILL 426
52nd legislature - STATE OF NEW MEXICO - first session, 2015
AN ACT
RELATING TO PROPERTY; ENACTING A NEW SECTION OF CHAPTER 47, ARTICLE 1 NMSA 1978 TO PROVIDE FOR SCRIVENER'S ERROR AFFIDAVITS TO CORRECT ERRORS IN INSTRUMENTS AFFECTING REAL PROPERTY.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
SECTION 1. A new section of Chapter 47, Article 1 NMSA 1978 is enacted to read:
"[NEW MATERIAL] USE OF SCRIVENER'S ERROR AFFIDAVITS.--
A. As used in this section, "scrivener's error affidavit" means an affidavit to correct a drafting error or clerical error relating to:
(1) a defect in a legal description, such as the omission of one or more words;
(2) a clerical error, an error in the name of a subdivision or the recording information for a plat or omitted bearings or distances in a metes and bounds description, as long as the correction does not add or remove land to the land being described;
(3) a misspelling of a name or an incorrect or missing middle initial;
(4) an omitted address for the grantee under a deed; or
(5) an error in the type of legal entity or state of domicile of a corporation or other legal entity.
B. A scrivener's error affidavit shall be executed by only:
(1) a licensed attorney who prepared the original instrument, or by a current employee of the title insurer or title insurance agent who completed the form of the original instrument and who is licensed under the New Mexico Title Insurance Law, for an error on a deed or other legal document prepared in conjunction with the closing of the transaction affecting the title to real property;
(2) a current employee of the mortgagee or beneficiary named in the form of the original instrument, or by a licensed attorney who represents the mortgagee or beneficiary named in the form of the original instrument, for an error on a mortgage or deed of trust;
(3) a licensed attorney who represents the principal or grantor of the original instrument, or by the principal or grantor of the original instrument, for an error on a power of attorney or an easement; or
(4) a licensed attorney who represents a party to the original instrument or who prepared the original instrument, for an error on any other writing affecting title to real estate.
C. A scrivener's error affidavit shall:
(1) state that the affiant has actual knowledge of and is competent to testify to the facts in the affidavit and contain an acknowledgment that the affiant is testifying under the penalty of perjury;
(2) be sworn to and acknowledged by the affiant before a person authorized to administer an oath under the laws of this state;
(3) conspicuously identify the document in its title that it is a "scrivener's affidavit" or "scrivener's error affidavit"; and
(4) contain the following information concerning the original instrument being corrected:
(a) the name of the person or entity that prepared, completed or was associated with the original instrument;
(b) the names and capacities of all parties to the original instrument;
(c) the recording information, including the recording date and document, instrument or reception number, if available, of the original instrument;
(d) a brief description of each error in the original instrument that the scrivener's error affidavit is designed to correct; and
(e) the correct information to be inserted or reflected in the original instrument.
D. A scrivener's error affidavit that substantially complies with this section as to form and execution shall be:
(1) recorded by the county clerk in the land records of the county in which the real property is located;
(2) indexed by the county clerk in the general index under the names of the original parties to the instrument as they are identified in the scrivener's error affidavit; and
(3) admissible as evidence 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.
E. Nothing contained in this section shall be deemed to:
(1) prohibit any other manner of correcting errors in any writings affecting title to real estate by any other lawful means such as corrective deeds, additional deeds to correct errors or modifications to mortgages or deeds of trust; or
(2) require a change to the records of the county assessor or the county treasurer.
F. A scrivener's error affidavit shall be prepared in substantially the following form:
"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 to be the Affiant of this Scrivener's Error Affidavit under New Mexico law due to 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, 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: Date of Recording ________
Recording information __________________________________________________________, in the real property records 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, removed or reflected in the Original Instrument is as follows: ______________________________________________________________________________________________________________________________ 10. This Affidavit is made under penalty of perjury.
FURTHER AFFIANT SAYETH NAUGHT.
Dated this _______ day of _____________, 20___.
_____________________________________________________________
Name: ________________________________________________________
Company Name: ________________________________________________
Title: ______________________________________________________
STATE OF NEW MEXICO
COUNTY OF _________________
This instrument was sworn to and acknowledged on this _________ day of ______________________, 20___ by _____________________________________, as ________________________ of _____________________________________________.
____________________________
Notary Public
(Seal)
My commission expires: ________________________________"."
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