How to Avoid Getting Your Deed Rejected for Recording, Part 3: 10 Fail-Safe Tips to Insure Success
August 28, 2017
On July 11, 2016, we authored Part One in an ongoing series discussing the mechanics of how to successfully record a deed in the State of New York, wherein we discussed the various types of ownership interests and how they should be correctly reflected.
On August 22, 2016, we authored Part Two in the series discussing how to successfully prepare and record a deed in the State of New York, wherein we discussed no consideration deed transfers and the importance of starting every transaction by securing a copy of the recorded deed from the County Clerk’s Office, not from your client or anyone else.
Today, we offer Part Three in the series – – 10 Fail-Safe Tips To Achieve Success:
Before we begin, although some of the tips below may seem rudimentary, rest assured I spend quite a bit of time providing answers to these questions:
- Ensure that you identify all buyers’ and sellers’ physical addresses. PO Boxes are not acceptable, as you cannot reside in a box. If you don’t know the physical address, write the street name of the property being transferred and indicate there is no number assigned to the property, such as “No # Main Street, Islip” for a property being transferred in the Town of Islip. Deed physical addresses are not used for billing purposes or tax billing purposes. This is more a form over substance arcane requirement.
- Deeds are only signed by sellers, unless the buyer is assuming a mortgage. As such, if you have two sellers and one buyer who is assuming a mortgage, than all parties must sign; and all signatures must be notarized.
- If the seller is a corporation, partnership, LLC or other type of business entity, the seller’s official capacity must be disclosed – i.e Jane Smith, managing member, or Jane Smith, President.
- If the notary public is related to any party, but not a party or beneficiary of the transaction, best practices would suggest that you find another notary. However, mere familial relation to a notary does not, per se, disqualify the notary. Most practitioners will frown upon this, although it is perfectly acceptable.
- There is a little know secret that pursuant to Real Property Law Section 309-a, a notary is not required to actually witness the person signing the deed. In other words, if Jane Smith signs the deed in front of her friend John Smith, and John Smith (who is not a party to the transaction) tells the notary that he witnessed Jane Smith sign the deed, then the notary may take the signature of Jane Smith. This is called a Subscribing Witness Form of notarization. The caveat here is that the notary must be personally acquainted with the subscribing witness. In this example, John Smith is the subscribing witness, with whom the notary must be personally acquainted. Likewise, if a subscribing witness notary signature is taken, a different notary jurat, found under section 309-a, must be used.
- Most deeds today state that the consideration for the transfer is “ten dollars and other valuable consideration.” This is perfectly acceptable, except in the case of an executor’s deed. Every executor’s deed must state the full and accurate consideration, together with the date of the seller’s death and the county where the death occurred and the will was probated. If there is no will, the same information applies to an administrative proceeding.
- Every deed should contain a recital called a “being and intended to be clause.” Quite frankly, these clauses have significant meaning. For instance, if a typographical error occurs in the deed’s legal description, by including a “being and intended to be clause”, in most cases a corrected deed will not be required if the source of the transfer is indicated to be from a prior deed, and the prior deed’s legal description had been correct. This can have a serious cost saving effect, given the exorbitant filing fees charged by Nassau and Suffolk Counties these days.
- Although I have been guilty of this faux pas myself, always sign deed documents in black ink.
- Even though most deed forms request a witness signature next to the signer’s (grantor’s) name, such as “in the presence of” or “witness here”, no such witness signature is required.
- Just as there is a subscribing witness notary jurat, there is also an out-of-state notary jurat. Ensure that if you are sending a deed out of state to be signed that an out-of-state notary jurat is included on the deed.
I hope this list of seemingly easy to remember tips is helpful for lawyers and paralegals alike. Stay tuned for an in-depth review of how to properly complete those all-encompassing transfer documents, such as the New York State TP-584 form, RP-5217 form, Community Preservation Tax Form and some interesting affidavits for mortgage tax reductions, such as the 253 Affidavit and 255 Affidavit.