There is no existing law that enables the use of an affidavit to repair a recorded document that contains an error. About a decade ago, the RODs created a form called an Affidavit of Correction (“AOC”) which was to be used to fix minor errors in recorded documents.

There is no existing law that enables the use of an affidavit to repair a recorded document that contains an error. About a decade ago, the RODs created a form called an Affidavit of Correction ("AOC") which was to be used to fix minor errors in recorded documents. Initially the AOC was used to fix errors such as changing a portion of the legal description from "thence east 123.87 feet" to "thence east 123.78 feet". The AOC would be recorded in the ROD office and was thought to repair the document that was previously recorded with the error. In 2007, the Wisconsin Court of Appeals ruled in Smiljanic v. Niedermeyer, 2007 WI App 182, 737 N.W.2d 436, that using AOCs to correct errors is not proper because there is no enabling statute under Wisconsin law. Soon thereafter, title insurance professionals, members of the State Bar, the lending industry, the RODs and county Real Property Listers met to discuss how to create an enabling statute that would both enable the use of a corrective instrument and grandfather in those previously recorded AOCs that met certain criteria. After over four years of work, the legislature has passed a new bill that enables the use of a "corrective instrument" to make certain repairs to a recorded document. The law describes under which scenario a corrective instrument can be used and importantly, who must sign the instrument.

What may be corrected? Generally, the corrective instrument may be used to correct a legal description (including a distance; angle; direction; unit, or building number or letter; subdivision or condominium name), a party's name, party's marital status, homestead information, execution dates, acknowledgments or authentications, and removal of an owner, among other uses of the corrective instrument.

Who may sign the corrective instrument? Generally, the person who may sign the corrective instrument is a "...person having personal knowledge of the circumstances of the conveyance and of the facts recited in the correction instrument, including the grantor, the grantee, the person who drafted the conveyance that is the subject of the correction instrument, or the person who acted as the settlement agent in the transaction that is the subject of the conveyance, and shall recite the basis for the person's personal knowledge." Thus in many, if not most instances, the settlement agent or the person who drafted the conveyance can sign the corrective instrument. However there are times when either the grantor or grantee must sign the corrective instrument including the removal of an owner from the conveyance (the removed party must sign), the addition of a parcel of land to the conveyance (the grantor must sign), and the removal of a parcel of land from the conveyance (the grantee must sign), among other fact scenarios.

The pending law also grandfathers the use "old" AOCs (pre-enactment of the pending law) IF those old AOCs would have been a valid correction instrument under the pending law.