Can Land Records Documents be Valid if Defective?
The land records of a town or county contain the relevant documents in regards to land ownership in the that location. Whenever buying or selling property, a title search must be performed to make sure the seller is giving the buyer clean title. Sometimes during these searches, attorneys come across documents that are defective, or missing something require by Connecticut law to make that document effective. One of the common areas where we have seen this is when individual attempt to create or manage their on trusts, but it happens in other situations as well.
The good news is, Connecticut General Statute 47-36aa can validate certain defects in recorded documents, as long as those documents were recorded 2 or more years earlier and have not yet been challenged in court.
What Kind of Defective Documents Can Be Validated?
CGS 47-36aa, known as the Validating Act, can cure defects in a multitude of common land records documents. The documents which can be validated if defective include:
- Powers of Attorney
- Notices of Lease
- other documents affecting real estate
What Kind of Document Defects Can Be Cured?
When searching land records, it is not simply enough that the document is there. Documents must be drafted in a specific manner, contain specific information, must be executed via specific procedures and be recorded in a specific manner; all of which is regulated by Connecticut law. While it is impossible to go over every type of defect that can occur in land record documents, here are the types of defects that can be cured by the Validating Act:
- defective or non-existent acknowledgement (the person signing the document did it wrong or forgot to do it)
- lack of a witness or witnesses
- missing, incorrect or conflicting dates
- where a business or trust entity is the grantor, but an individual signs the document in their individual capacity
- where a business or trust entity is the grantor, but an individual signs without disclosing their authority to sign
- a document signed under a power of attorney, but signed without referencing the power
- if a document is signed under a power of attorney which is effective but not recorded until after
- a document transferring property to a recipient who does not have the legal capacity to hold interest in real estate
What Kind of Defects CAN NOT be Cured?
The validating act does not cure any and all defects in documents that have been recorded yet unchallenged for 2 or more years. The following defects are NOT cured by the Validating Act and therefore make their documents invalid:
- errors in or missing property description
- errors in the names of relevant parties
- Incorrect references in deeds, mortgages and releases (to other land record documents)
- documents not signed by the original signature of the grantor
- unrecorded or missing documents
- defects in foreclosure proceedings
- gaps in chain of title
How Do You Stop Defective Documents from Being Validated?
If you want to make sure that a defective land records document is not cured and validated, you must challenge the document by bringing a court action and recording a lis pendens within 2 years of the document being recorded.