New Mexico Statutes 47-1-57. Use of scrivener’s-error affidavits
A. As used in this section, “scrivener’s-error affidavit” means an affidavit to correct a minor drafting or clerical error or omission in a recorded instrument, including:
Terms Used In New Mexico Statutes 47-1-57
- Affidavit: A written statement of facts confirmed by the oath of the party making it, before a notary or officer having authority to administer oaths.
- Corporation: A legal entity owned by the holders of shares of stock that have been issued, and that can own, receive, and transfer property, and carry on business in its own name.
- Deed: The legal instrument used to transfer title in real property from one person to another.
- Evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.
- Grantor: The person who establishes a trust and places property into it.
- Oath: A promise to tell the truth.
- Power of attorney: A written instrument which authorizes one person to act as another's agent or attorney. The power of attorney may be for a definite, specific act, or it may be general in nature. The terms of the written power of attorney may specify when it will expire. If not, the power of attorney usually expires when the person granting it dies. Source: OCC
- Real property: Land, and all immovable fixtures erected on, growing on, or affixed to the land.
- Testify: Answer questions in court.
(1) a legal description, such as the omission of one or more words; (2) the name of a subdivision;
(3) the recording information for a plat;
(4) a metes and bounds description or sectionalized legal description; provided that the description shall reference a recorded instrument reflecting the correct description, if available;
(5) the spelling of a name;
(6) a middle initial, if incorrect or missing;
(7) a grantor‘s or grantee’s address, if omitted in a recorded instrument; (8) a party’s marital status;
(9) a missing exhibit or addendum; or
(10) the legal type or state of domicile of a corporation or other legal entity. B. A scrivener’s-error affidavit shall be executed by only the following:
(1) for an error or omission on a recorded instrument involving real property: (a) the licensed attorney who prepared the original instrument;
(b) the employee of the title insurer or title insurance agent who completed the form of the original instrument;
(c) an employee of a title insurer or title insurance agent licensed pursuant to the New Mexico Title Insurance Law [N.M. Stat. Ann. Chapter 59A, Article 30];
(d) a land professional who is certified or registered by a nationally recognized land professional organization and who filled in the form or provided the description for the original instrument; or
(e) a licensed attorney who has examined title to the property and discovered discrepancies in the description in a chain of title that are reasonably apparent to the attorney to be a minor drafting or clerical error or omission; and
(2) for an error on a power of attorney:
(a) a licensed attorney who represents the principal or grantor of the original instrument; or
(b) the principal or grantor of the original instrument. 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 New Mexico law;
(3) conspicuously identify 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 who 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 affidavit is designed to correct; and
(e) the correct information to be inserted or reflected in or the information to be removed from 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 affidavit;
(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; and
(4) effective as of the date of the original instrument being corrected. 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 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: 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 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. FURTHER AFFIANT SAYETH NAUGHT.
Dated this day of , 20 .
Name: Company Name: Title: STATE OF COUNTY OF This instrument was subscribed, sworn to and acknowledged on this day of , 20 by , as of .
Notary Public (Seal) My commission number: My commission expires: “.