Deed Corrections in Texas

When may a deed be corrected?

A deed may be corrected by means of a correction instrument when there is a material or non-material error (see below for an explanation of this important distinction). The correction instrument then becomes the operative document in the chain of title, replacing the original deed but retaining its effective date. The deed correction statute reads:

Prop. Code Sec. 5.027. Correction Instruments. (a) A correction instrument . . . may correct an ambiguity or error in a recorded original instrument [conveying a real property interest] including an ambiguity or error that relates to the [property description] or extent of the interest conveyed.

In determining whether or not to utilize a correction instrument, the first step is to make sure one is looking at an instrument of conveyance (a warranty deed) not an affidavit or something else. Correction instruments executed pursuant to Section 5.027 are intended to address errors in conveyances only.

If the parties intend to alter fundamental terms of the original conveyance then a new deed—not a correction instrument—may be better advised.

A Correction is Not a Conveyance

It is important to understand that a correction instrument is not a conveyance. It is merely an affidavit reciting a correction. “The execution of a correction [instrument] itself, without more, does not constitute a sale or conveyance of real property. In fact, a correction [instrument] conveys nothing; it simply replaces and is a substitute for the original instrument.” Endeavor Energy Resources, LP v. Trudy Jane Anderson Testamentary Trust, 644 S.W.3d 212 (Tex. App.—Eastland 2022, no pet.) citing Prop. Code Sec. 5.030(a)(1).A correction instrument is a supplementary filing that relates back in time to an original deed that contained some error or mutual mistake. It corrects the mistake but leaves other terms of the conveyance intact. No new consideration is required. Broadway Nat’l Bank v. Yates Energy Corp., 631 S.W.3d 16 (Tex. 2021).

Effectiveness of a Correction

The effectiveness of correction instrument “turns on the original parties compliance with statutory requirements which are necessary to validate [the correction], not on the apparent intent of the parties when they executed the original instrument.” Even so, failure to strictly comply with the correction statute does not render a correction instrument void but only potentially mitigates its effectiveness. Gaskins v. Navigator Oil and Minerals, Inc., 670 S.W.3d 391 (Tex.App.—Eastland 2023, pet. denied).

Non-Material Corrections to a Deed

As to non-material corrections, the statute reads:

Prop. Code Sec. 5.028. Correction Instruments: Nonmaterial Corrections. (a) A person who has personal knowledge . . . may prepare or execute a correction instrument to make a nonmaterial change that results from a clerical error. . . .

Section 5.028 deals with correction instruments that make a non-material correction to instruments of conveyance—the classic scrivener’s error, in other words. Perhaps a distance or an angle in the legal description was misstated, the name of an entity or party is misspelled, a party’s marital status is incorrectly recited, or there is an error in an acknowledgment. A person with personal knowledge of the facts (not necessarily a party) may execute this type of correction instrument without joinder of others, but a copy of the correction instrument must be sent to each party to the original instrument.

Material Corrections to a Deed

As to material corrections, the statute reads:

Prop. Code Sec. 5.029. Correction Instruments: Material Corrections. (a) In addition to nonmaterial corrections . . . the parties to the original transaction or the parties’ heirs, successors, or assigns . . . may execute a correction instrument to make a material correction to the recorded original instrument . . . [so long as the] correction instrument [is] executed by each party to the [original instrument] or, if applicable, a party’s heirs, successors, or assigns; and [then] recorded. . . .

Section 5.029 addresses the more serious issue of material corrections. Examples include conveyance of the wrong property (lot 5 instead of lot 6 for example) or conveyance to the wrong entity.
A correction instrument effecting this sort of material correction must be executed by each party to the original recorded instrument. “If a material correction is required, Section 5.029 requires that either the original parties to the transaction or the heirs, successors, or assigns of an original party, if applicable, must execute it.” See Endeavor, cited above.

Affected Third Parties

Can the parties use a correction instrument to correct a material error after a third party acquires an interest in the property? Must the third party sign off on the change? No, says the Supreme Court:

In [Broadway National Bank v. Yates] the Supreme Court held that Section 5.029 permits the original parties to a conveyance to execute a valid correction deed even when the original grantees no longer own the property at issue. In so holding, the court rejected the argument (which is advanced by the Trust) that all current interest owners in the property must execute the correction deed. Thus, an “heir, successor, or assign” is required to execute a correction deed only if an original party to the transaction is unavailable.

See Endeavor, cited above.

Notwithstanding this case law, one can expect that title companies, in order to protect their interests, will continue to insist that all affected parties sign a material correction instrument before issuing a title policy. Standard 2.20, Texas Title Examination Standards.

Experienced practitioners will advise that it is the better practice to have any correction instrument executed by all affected parties if it is feasible to do so. In fact, depending on the circumstances, it may be the best practice to execute an entirely new deed that is made effective as of the date of the original instrument.

Statute of Limitations for Corrections

The usual four-year statute of limitations for written documents (Civil Prac. & Rem. Code Chap. 16) applies to deed correction and reformation cases. The statute begins to run on the date the deed is signed and delivered (the date of the legal injury which is the legal injury rule) or when a claimant discovers, or through the exercise of ordinary diligence, should have discovered the alleged error or defect (the discovery rule).
Which rule to apply—the legal injury rule or the discovery rule—is the subject of much litigation. The Marcus case explains:

The discovery rule is a narrow exception to the legal injury rule that defers accrual of a cause of action until the plaintiff knew or, exercising reasonable diligence, should have known of the facts giving rise to the cause of action. It applies when the injury is by its nature inherently undiscoverable. An injury is inherently undiscoverable if it is by nature unlikely to be discovered with the prescribed limitations [based on the legal injury rule] despite due diligence. The determination of whether an injury is inherently undiscoverable is made on a categorial basis rather on the facts of the individual case.

See Marcus & Millichap Real Estate Investment Services of Nevada, Inc. v. Triex Texas Holdings, LLC, No. 21-0913 (Tex. 2023).

There is a rebuttable presumption that the respective parties know the contents of a deed at the time of closing, particularly if clearly stated, since it is the basic due diligence obligation of nearly everyone to read a document before signing or receiving it at a real estate closing. Trahan v. Mettlen, 428 S.W.3d 905 (Tex.App.—Texarkana 2014, no pet.).

In cases of mistake, waiting to take action does not generally work to the benefit of the plaintiff. In Jarzombek v. Ramsey (534 S.W.3d 534 (Tex.App.—San Antonio [4th Dist.] 2017, pet. denied), the court declined to reform a deed seven years after closing, stating that the discovery rule is not intended to extend the statute of limitations for the purpose of correcting conspicuous and plainly-evident mistakes.