Can Mistakes in Deeding Property be Fixed?

What if you contract to sell one piece of property to a buyer, but end up selling the wrong piece of land at closing? What if you promise to sell the buyer a whole piece of land, but mistakenly only deed a part of the land to the buyer? Worse yet, what if you promise to deed the buyer only a portion of the land, but you inadvertently deed the entire land to the buyer at closing? Can these errors be rectified? The simple answer is yes, but it must be qualified. An error in the transfer of property can only be corrected if there is a mutual mistake of fact between the parties. In such an instance, the court can modify or re-write the deed to make it consistent with the seller’s and buyer’s actual mutual intent. What happens when the seller and buyer cannot agree?

A recent court case, Wheeler-Dealer, Limited v. Christ, 319 Ill.Dec. 79 (1st Dist. 2008) illustrates the consequences, which can be disastrous. In that case, the seller and the buyer entered into a contract to sell / purchase real estate; no property address was written in the contract, only a legal description. The legal description identified only a portion of the lot; specifically, it referred to the “east 165 feet of lot 4”. At the time of closing, the seller deeded all of lot 4 to the buyer.

Afterwards, the seller sued the buyer, stating that he only meant to deed the east 165 feet of lot 4, as per contract, and he should receive the rest of the lot back. The buyer claimed that his intention had always been to purchase the entire land. The court believed the buyer, who won the case.

Moral of the story? Be very, very, very careful when drafing deeds and other documentation affecting the sale of real estate. A simple typographical error can cause a great deal of expense and heartache, and it can’t always be fixed!