A BILL TO BE ENTITLED
AN ACT to clarify the process for correcting nonmaterial errors in recorded instruments of title, to create a curative procedure for obvious description errors in documents of title, and to create a ten‑year curative provision for certain defects in recorded instruments of title.
The General Assembly of North Carolina enacts:
SECTION 1.  G.S. 47‑36.1 reads as rewritten:
"§ 47‑36.1.  Notice of errors in recorded instruments of title.
(a)	Notwithstanding G.S. 47‑14 and G.S. 47‑17, notice of a nonmaterial typographical or other minor nonmaterial error in a deed or other instrument recorded with the register of deeds may be given by recording a corrective notice affidavit. If a corrective notice affidavit is conspicuously identified as a corrective notice or scrivener's affidavit in its title, the register of deeds shall index the name of the affiant, the names of the original parties in the instrument, the recording information of the instrument for which the corrective notice is being given, and the original parties as they are named in the affidavit. A copy of the previously recorded instrument to which the corrective notice affidavit applies may be attached to the corrective notice affidavit and need not be a certified copy. To the extent the correction is inconsistent with the originally recorded instrument, and only to that extent, notice of the corrective information as provided by the affiant in the corrective notice affidavit is deemed to have been given as of the time the corrective notice affidavit is registered. Nothing in this section invalidates or otherwise alters the legal effect of any instrument of correction authorized by statute in effect on the date the instrument was registered.
…."
SECTION 2.  Article 2 of Chapter 47 of the General Statutes is amended by adding a new section to read:
"§ 47‑36.2.  Cure of obvious description errors in recorded instruments.
(a)	The following definitions apply to this section, unless the context requires a different meaning:
(1)	Authorized attorney. – An individual licensed to practice law under Chapter 84 of the General Statutes, who is one of the following:
a.	The attorney who drafted the instrument containing the obvious description error to be corrected.
b.	The attorney for any party to the transaction for which the instrument containing the obvious description error was recorded, including, for example, but not limited to, the attorney for (i) the grantor or grantee in a deed; (ii) the mortgagor or mortgagee in a mortgage; (iii) the grantor or trustor in a deed of trust; (iv) the trustee or duly appointed substitute trustee in a deed of trust; (v) the beneficiary of record in a deed of trust or the assignee of record of the beneficial interest; (vi) the assignor or assignee in an assignment of leases, rents, or profits; or (vii) any party to an instrument affecting title to real property.
(c)	An attorney retained by a title insurance company or title insurance agent that either (i) has issued a policy of title insurance covering the subject property in the transaction in which the error occurred or in any subsequent transaction or (ii) proposed to issue a policy of title insurance in reliance on a curative affidavit recorded or to be recorded in accordance with the provisions of this section.
(2)	Curative affidavit. – An affidavit executed by an authorized attorney to correct an obvious description error.
(3)	Notice of intent. – A notice issued by an authorized attorney of the authorized attorney's intent to sign and record a curative affidavit.
(4)	Obvious description error. – An error in the legal description of real property that is contained in an instrument affecting title to real property recorded in the office of the register of deeds in the county in which the real property or any part or parts thereof is located that is evidenced by any of the following:
a.	The property is identified and shown on a recorded plat, but the legal description of the property appearing in the instrument is not consistent with the recorded plat.
b.	The error is made apparent by reference to other information contained in the instrument or an attachment to the instrument, or by reference to another instrument in the chain of title for the subject parcel, including a recorded plat.
c.	One or more of the following, as stated in the instrument, are inconsistent in that one or more identify the property incorrectly:
1.	The legal description of the property.
2.	The physical address of the property.
3.	The tax map identification number of the property.
4.	An incorrect plat reference.
5.	An incorrect deed reference.
d.	The legal description of the real property in the instrument contains one or more errors transcribing courses and distances, including, for example, the omission of one or more lines of courses and distances, the omission of angles and compass directions, or the reversal of courses.
e.	The instrument contains an error in a lot or unit number or designation, and the lot or unit described is not owned by the grantor, trustor, mortgagor, or assignor at the time the instrument is executed.
f.	The instrument omits an exhibit or attachment intended to supply the legal description of the subject property.
The term "obvious description error" does not include and shall not apply to (i) missing or improper signatures or acknowledgements; (ii) any designation of the type of ownership interest or right of survivorship; or (iii) any error in the legal description that operates to convey any interest in real property that the grantor, trustor, mortgagor, or assignor owned at the time of conveyance but did not intend to convey.
(5)	Recorded plat. – A plat that has been prepared by a professional land surveyor licensed pursuant to Chapter 89C of the General Statutes and has been recorded with the register of deeds in the county where the property is situated.
(6)	Recording data. – The book and page number or document number that indicates where an instrument is recorded in the office of the register of deeds.
(7)	Title insurance agent. – A person or entity licensed by the Commissioner of Insurance and contractually authorized by one or more title insurance companies to issue commitments and policies on behalf of said title insurance company.
(8)	Title insurance company. – A company certified pursuant to Article 26 of Chapter 58 of the General Statutes that has issued or intends to issue a policy of title insurance covering real property described in a recorded instrument needing correction.
(b)	Notwithstanding G.S. 47‑14 and G.S. 47‑17, obvious description errors in a recorded instrument affecting title to real property may be cured by recording a curative affidavit with the register of deeds in every county where the real property is situated.
(c)	Prior to recording a curative affidavit as described in subsection (b) of this section, the authorized attorney seeking to record the affidavit shall serve a notice of intent and a copy of the unsigned proposed curative affidavit on the persons identified in this subsection. Service of the notice of intent and copy of the unsigned proposed curative affidavit shall be made in any manner provided by Rule 4 of the Rules of Civil Procedure for service of a summons to affect personal jurisdiction. The persons entitled to service of the notice of intent and a copy of the unsigned proposed curative affidavit pursuant to this subsection are as follows:
(1)	All parties to the instrument that is the subject of the curative affidavit. In the case of a deed of trust, the parties to the instrument shall include the grantor or trustor named in the deed of trust and the beneficiary of record, but need not include the trustee named in the deed of trust or any substitute trustee.
(2)	The current record mortgagee, record beneficiary, record assignee, or record secured party in any mortgage, deed of trust, assignment of leases, rents, or profits, or other recorded security instrument that may be adversely affected by the recording of the curative affidavit.
(3)	The current record owner of the real property.
(4)	The attorney who prepared the instrument that is the subject of the curative affidavit, if known.
(5)	Any title insurance company and title insurance agent, if applicable and known, that (i) issued a policy of title insurance covering the subject property in the transaction in which the error occurred or in any subsequent transaction or (ii) proposes to issue a policy of title insurance in reliance on the proposed curative affidavit.
(6)	The current record owners of all adjoining properties that may be adversely affected by the recording of the curative affidavit, the current record holders of any mineral or timber rights that may be adversely affected by the recording of the curative affidavit, and the record holders of any easement rights that may be adversely affected by the recording of the curative affidavit.
(d)	Each person served with the notice of intent and a copy of the unsigned proposed curative affidavit described in subsection (c) of this section that wishes to object to the recordation of the proposed curative affidavit or dispute the facts recited in the proposed curative affidavit must do so in a writing sent or delivered to the authorized attorney within 30 days after the service of the documents upon that person. If the authorized attorney receives a written objection to the recordation of the proposed curative affidavit or a written statement disputing the facts recited in the proposed curative affidavit from any person served with the notice of intent and a copy of the unsigned proposed curative affidavit within the prescribed 30‑day time period applicable to the person so served, the authorized attorney shall not sign or record the proposed curative affidavit. If the authorized attorney does not receive a written objection to the recordation of the proposed curative affidavit or a written statement disputing the facts recited in the proposed curative affidavit from any person served with the notice of intent and a copy of the unsigned proposed curative affidavit within the prescribed 30‑day time period for each person so served, the authorized attorney may sign and record the proposed curative affidavit.
(e)	An affidavit is sufficient as a curative affidavit if it does all of the following:
(1)	Contains a statement that the curative affidavit should be indexed as a "subsequent instrument" pursuant to G.S. 161‑14.1.
(2)	Contains a statement that the curative affidavit is recorded pursuant to G.S. 47‑36.2 to correct an obvious description error contained in a previously recorded instrument.
(3)	Contains a statement that the affiant is an attorney licensed to practice law in North Carolina and is an authorized attorney pursuant to G.S. 47‑36.2(a)(1).
(4)	Identifies each instrument subject to the curative affidavit by stating the title of the instrument, the parties to the instrument, and the recording data for the instrument.
(5)	Identifies the obvious description error contained in each instrument subject to the curative affidavit.
(6)	Corrects the obvious description error by stating the correct property description.
(7)	Contains a statement that the affiant served a copy of the notice of intent required by subsection (c) of this section and a copy of the unsigned proposed curative affidavit on all persons entitled to notice pursuant to subsection (c) of this section and that service on each such person was properly effected in a manner prescribed for the service of a summons in accordance with Rule 4 of the North Carolina Rules of Civil Procedure.
(8)	Contains a statement that the affiant did not receive any written objection to the recordation of the curative affidavit or any dispute of the facts recited in the curative affidavit from any person so served within the 30‑day period following the date each person was served.
(9)	Provides the name, telephone number, and mailing address of the affiant.
(10)	Is signed and sworn to or affirmed by the authorized attorney as affiant before a notary public, with an appropriate jurat completed by the notary public that conforms to the requirements of Article 1 of Chapter 10B of the General Statutes.
(f)	A curative affidavit recorded pursuant to this section in the office of the register of deeds in the county where the real property is located shall operate as a correction of the instrument being corrected that relates back to, and is effective as of, the date the instrument being corrected was originally recorded in the office of the register of deeds, with the same effect as if the description of the property was correct when the instrument was first recorded, and all parties to the instrument being corrected shall be bound by the terms contained in the recorded curative affidavit and the instrument being corrected.
(g)	Upon payment of the appropriate recordation fee, the register of deeds shall accept a curative affidavit for recording unless the curative affidavit (i) is submitted by a method or in a medium not authorized for registration by the register of deeds under applicable law, (ii) is not signed by the affiant and sworn to or affirmed as required by law for an affidavit or affirmation, or (iii) lacks a proper jurat. A copy of the previously recorded instrument to which the curative affidavit applies may be attached to or recorded with the curative affidavit and need not be a certified copy. The register of deeds shall not be required to verify or make inquiry concerning (i) the truth of the matters stated in any curative affidavit or (ii) the authority of the person executing any curative affidavit to do so. The register of deeds shall index the curative affidavit in the name of the affiant and in the names of the various parties to each instrument being corrected as both grantees and grantors, irrespective of their designation in the instrument being corrected. The costs associated with the recording of a curative affidavit pursuant to this section shall be paid by the party submitting the affidavit to the register of deeds.
(h)	A curative affidavit recorded in compliance with this section shall be prima facie evidence of the facts stated therein. Any person who wrongfully or erroneously records a curative affidavit is liable for actual damages sustained by any party as a result of the recordation, including reasonable attorneys' fees and costs.
(i)	The remedies prescribed by this section are not exclusive and do not abrogate any rights or remedies otherwise available under the laws of this State, including any rights or remedies under G.S. 47‑36.1.
(j)	No particular phrasing is required for a curative affidavit. The following form of affidavit, when properly completed, is sufficient to satisfy the requirements of subsection (e) of this section for a curative affidavit:
"Curative Affidavit
This curative affidavit should be indexed as a "subsequent instrument" pursuant to G.S. 161‑14.1.
I, _________________________, certify as follows:
1.	This curative affidavit is recorded pursuant to G.S. 47‑36.2 to correct an obvious description error contained in a previously recorded instrument.
2.	I am an attorney licensed to practice law in North Carolina. I am an "authorized attorney" as defined in G.S. 47‑36.2(a)(1).
3.	The instrument or instruments containing an obvious description error requiring correction are identified as follows:
Insert here the following information regarding each instrument to be corrected: the title of the instrument, the parties to the instrument, and the recording data for the instrument.
4.	The obvious description error contained in the instrument(s) to be corrected is identified or described as follows:
Insert here the erroneous description that requires correction.
5.	The erroneous property description is corrected to read as follows:
Insert here the correct description of the real property.
6.	I have served a copy of a notice of my intent to sign and record this curative affidavit and a copy of this curative affidavit, unsigned, on all persons entitled to notice pursuant to G.S. 47‑36.2(c). Service on each such person was properly effected in a manner prescribed for the service of a summons in accordance with Rule 4 of the North Carolina Rules of Civil Procedure. I did not receive any written objection to the recordation of this curative affidavit or any dispute of the facts recited in this curative affidavit from any person so served within the 30‑day period following the date each such person was so served. 
7.	My name, telephone number, and mailing address are as follows:
Insert here the affiant's name, telephone number, and mailing address.
Date: ___________________
_______________________________________
Signature of Affiant

COUNTY OF ___________, STATE OF _____________
The foregoing curative affidavit was sworn to or affirmed and subscribed before me this day by __________________________.

Date: ___________________
_______________________________________
Signature of Notary Public
Official Seal
___________________________, Notary Public
Print or Type Notary's Name

My commission expires: ___________________"

(k)	No particular phrasing is required for a notice of intent described in subsection (c) of this section. The following form, when properly completed, is sufficient to satisfy the requirements of subsection (c) of this section for a notice of intent:
"NOTICE OF INTENT TO CORRECT AN OBVIOUS DESCRIPTION ERROR

This is an important legal document that requires your immediate attention. Your property rights may be affected, and you may need to respond to this notice in writing.

I am an attorney licensed to practice law in North Carolina. My contact information is as follows:
Insert the name, telephone number and mailing address of the
authorized attorney issuing the notice.

I have discovered or have been advised of an error in the description of real property contained in one or more instruments recorded as part of a real estate‑related transaction. A copy of a proposed Curative Affidavit accompanies this notice. The proposed Curative Affidavit identifies the previously recorded instrument or instruments that contain the description errors that I plan to correct, the description error or errors that require correction, and the correct description of the real property. If I sign and record the proposed Curative Affidavit, it will have the legal effect of correcting the erroneous property description in the listed instrument or instruments that contain the description errors.
Real property you own may be affected if I correct the erroneous description of the real property in the instrument or instruments identified in the proposed Curative Affidavit. You should consult with your attorney promptly to determine whether and the extent to which my correction of the legal description in the instrument or instruments that need to be corrected will impact your property or property rights.
IF YOU WISH TO OBJECT TO MY SIGNING AND RECORDING THE PROPOSED CURATIVE AFFIDAVIT OR DISPUTE THE FACTS RECITED IN THE PROPOSED CURATIVE AFFIDAVIT, YOU MUST DO SO IN A WRITING, SENT OR DELIVERED TO ME WITHIN 30 DAYS AFTER THE DATE YOU WERE SERVED WITH THIS NOTICE AND THE PROPOSED CURATIVE AFFIDAVIT.
If I do not receive a written objection disputing the facts recited in the proposed Curative Affidavit or objecting to my signing and recording the proposed Curative Affidavit from you or any other person that receives this notice within the prescribed 30‑day period applicable to each person so served, I intend to sign and record the Curative Affidavit. However, if I receive a written objection within the 30‑day time period prescribed by statute, I am not permitted to sign or record the Curative Affidavit.
If you dispute the facts recited in the proposed Curative Affidavit or object to my signing and recording the Curative Affidavit, you need to write to me promptly at my address stated above. While I encourage you to call me if you have questions, your telephone call will not be sufficient – you must write to me if you dispute the facts recited in the proposed Curative Affidavit or object to my signing and recording the Curative Affidavit.

Date: ____________________
______________________________
Signature of authorized attorney"

(l)	Nothing in this section requires that a curative affidavit be attached to an original or certified copy of a previously recorded instrument that is unchanged but rerecorded. Nothing in this section requires that a curative affidavit be attached to a copy of a previously recorded instrument that includes identified corrections or an original execution by a party or parties of the corrected instrument after the original recording with proof or acknowledgment of their execution of the correction of the instrument."
SECTION 3.  Article 4 of Chapter 47 of the General Statutes is amended by adding a new section to read:
"§ 47‑108.28. Ten‑year curative statute.
(a)	If (i) an instrument conveying or purporting to convey an interest in real property contains a material defect, irregularity, or omission; (ii) the instrument is recorded by the register of deeds in the county or counties where the property is situated; and (iii) the material defect, irregularity, or omission is not corrected within 10 years after the instrument was recorded, then the instrument shall be deemed effective to vest title as stated therein and to the same extent as though the instrument had not contained the material defect, irregularity, or omission. The proper recordation and indexing of a curative instrument or a notice of lis pendens shall act as a toll to the 10‑year curative period.
(b)	For the purposes of this section, a "material defect, irregularity, or omission" occurs when the recorded instrument facially fails to comply with any of the following:
(1)	The proper execution of a form of acknowledgment as provided under Article 3 of Chapter 47 of the General Statutes.
(2)	The proper recital of consideration paid, the residence of a party, the address of the property or party, or the date of the instrument or any instrument or obligation secured by the instrument.
(3)	The proper affixation of seal by any person authorized to execute an instrument by virtue of an office or appointment held by the grantor that is required to affix the seal to the recorded instrument under applicable law.
(c)	Nothing in this section is intended to modify any provisions of law pertaining to the competency or infancy of the grantor or the provisions of Chapter 22 of the General Statutes or to limit any remedies available under the laws of this State."
SECTION 4.  G.S. 161‑14.1(a) reads as rewritten:
"§ 161‑14.1.  Recording subsequent entries as separate instruments.
(a)	As used in this section, the following terms mean:
…
(3)	Subsequent instrument. – Any instrument presented for registration that indicates in its title or within the first two pages of its text that it is intended or purports to correct, modify, amend, supplement, assign, satisfy, terminate, revoke, or cancel a previously registered instrument. Examples of subsequent instruments include the following:
a.	The appointment or designation of a substitute trustee in a deed of trust.
b.	A corrective notice affidavit registered pursuant to G.S. 45‑36.1 or a curative affidavit registered pursuant to G.S. 45‑36.2.
…."
SECTION 5.  This act is effective when it becomes law and applies to curative affidavits filed on or after that date.