While confirmatory deeds are rarely used, they can be critical to unencumbered real estate ownership. A confirmatory deed is used to correct one or more "defects" in a property owner's title. Should a real estate sale or other transfer of ownership occur and a defect in the current or previous title appear, a confirmatory deed can correct the prior problem as well as the present issue.
Title defects come in all flavors and varieties. Some are simple typographical errors that persons preparing deeds make. For example, someone (grantor) sells real estate to another (grantee) named Smyth. The attorney or escrow company managing the closing prepares a deed for "Smith." Although this is a simple title defect, others can be much more troublesome. For example, a title transfer over 100 years ago didn't have signatures of all owners on the deed. The nonsigning owner is long deceased. Heirs must be located and asked to sign in the present. Locating descendants and obtaining signatures costs money and time. In both examples, however, confirmatory deeds are required to correct recorded ownership.
In most cases, the property owner's title insurance and title company will correct the defects and permit or create a confirmatory deed. If an attorney or title examiner is responsible for causing or discovering a title defect, he may be responsible for researching and correcting the problem. Should a closing agent uncover a title problem before a closing, the current owner's title insurance company is typically responsible for correcting the issue. Should discovery occur after a closed sale, the buyer's title company will usually be responsible for fixing the problem.
Timing of Defect Discovery
The timing of the discovery of a title defect determines the need and nature of a confirmatory deed. The key factor is "recording date." For example, party A sells a property to party B, named "Smyth." At the closing, the parties discover that the deed states the buyer as "Smith." Since the deed is not yet recorded, the deed to be used in the closing of the deal can simply be corrected by the closing agent (attorney or escrow company). However, if discovery is made a day, week, month or later after the transaction and deed are recorded at city hall, registry of deeds, or appropriate location, a confirmatory deed, correcting the new owner's name, must be prepared, signed and recorded at the same location. Only recorded instruments must be corrected by a confirmatory deed.
Confirmatory deeds cannot be authorized, prepared or recorded until the title defect is corrected and "cured." Property owners who are advised of title problems that occurred during periods of prior owners should demand complete clarification of the issue, who is responsible to correct it, and how it will be corrected. Title defects, once uncovered, may pose risk to current owners and, until corrected, will make it difficult or impossible for current owners to sell or refinance their property. Current owners should mandate the issuance and recording of a confirmatory deed as quickly as possible.
Confirmatory deeds benefit current property owners, prior owners, mortgage lenders and future owners. While a missing signature from 100 years ago or an un-noted easement (right of way) for a now-defunct company's trucks to cross your property might not ever affect an owner, the possibility is always present that the defect could become troublesome or expensive. Confirmatory deeds guarantee that present and/or prior title problems are eliminated, making these documents very important and beneficial when needed.
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