Q: I recently found out that the master deed plan referenced on my title document shows the wrong unit number for my condo. I have tried approaching my neighbor to work on a title transfer swap, but they are unwilling to do a title swap. How can I fix my title document? My condo association lawyer is also unwilling to take on the fix.
A: Well, mistakes sometimes happen; but you need to make sure that you actually do have a mistake on hand. To get there, you should know a little bit about condominiums to understand what they are and how a developer creates them
A bit of history: Before we had condominiums, people would purchase some land and build a house on the lot. Typically, the land buyers knew exactly what they purchased as they knew the physical boundaries of the land. In subdivisions, you might own a specific numbered lot with specific dimensions. Sometimes those subdivision lots were simple geometric shapes of rectangles or squares. In other instances, the land was odd shaped or there were physical parts to the property (like a river or lake) that helped shape the lot. In any case, the owner of the land owned everything within the boundaries of the purchased lot.
At one point, land owners put up larger buildings that housed many families and, eventually, those families wanted to buy the space in which they lived. This led to the development of cooperative buildings, where unit owners owned a share in a corporation that owned the property. That ownership also came with a lease that gave the share owner the right to live in a specific apartment so long as they were share owners in the cooperative.
Then came an innovation in real estate. Starting in the 1960s, state legislatures passed legislation that allowed for the creation of condominiums. (The first condo building in the U.S. was built in Salt Lake City, according to Condopedia.com and AssociaOnline.com.) These laws allowed landowners to divide their land into slices or pieces and create condominiums in high-rise buildings. For these condominiums to exist, the landowner would have to create a document that would govern the relationship of the owners and a land survey that would show the location and exact dimensions for the condominiums.
High-rises or multi-story buildings, townhome developments or single family developments that are within a condominium association typically have a governing document — frequently called a condominium declaration — and a survey of the land. If you look at the survey, you’ll see very detailed information showing the elevation of the floor and the elevation of the ceiling of a condominium building along with the exterior dimensions of the unit. And, most importantly, you’ll see that the surveyor has noted the unit number for each unit in the building.
Our suggestion for you is to make sure that you are looking at the document that your developer recorded for your development. Sometimes homeowners obtain copies, unofficial documents or drafts of documents for their homes. These documents may differ from those your developer actually recorded for the association.
With that document, you can compare if the designation for your home matches the designation for your home in the survey. It should and must. If the title deed you received at your closing does not match the location on the survey for your unit, you don’t own the apartment you are living in.
Several years ago, Sam represented a buyer where the developer’s attorney had labeled all of the units on every floor of the building in a clockwise fashion from unit 1 to unit 10. The surveyor took the opposite approach and labeled all of the units on the floor in a counterclockwise fashion. When Sam was at the closing for his client’s unit, he reviewed the survey and noticed the discrepancy.
It was a new building and the developer and title company had to go back and get the survey changed to reflect the manner in which the developer had conveyed the many units sold to that date. The amendment then matched the deeds that the developer had conveyed.
So, first you have to determine if you actually have a problem. If you do, and you and your neighbor are the only ones with this problem, you and your neighbor can correct the issue by working together to get that done.
If the survey shows the unit you live in as Unit 5 and your deed shows that your unit number should be Unit 6, and your neighbor has the reverse, you and your neighbor can re-record your deeds with the corrected legal descriptions or take steps that are permitted in your state to correct the error.
In any case, you will need your neighbor’s cooperation to get it done, and it’ll help convince your neighbor if you have all the information in hand while explaining the mistake. Some people are skeptical when someone approaches them to say that the home they are in may not be theirs. We know we would be. So, you need to show your neighbor all of your information and tell them exactly what you would need to do and why it would be necessary to do it. (If they don’t fix the problem, it will come back to bit them when they decide to sell the property.)
Your association’s attorney won’t want to get involved as the mistake or problem is between unit owners and not with the association (unless you uncover a situation like Sam’s, where the whole building has been misnumbered). You can contact the closing attorney or title company that closed on your purchase and see if they will assist you in resolving this situation. It’s unclear to us whether the title company or settlement attorney would have any liability for the error.
Finally, if you do have a problem correcting the error, we highly recommend that you talk to a real estate attorney to assist. Sometimes, all that’s needed is a letter on legal letterhead explaining the problem and solution, to get people moving.
(Ilyce Glink is the author of “100 Questions Every First-Time Home Buyer Should Ask” (4th Edition). She is also the CEO of Best Money Moves, an app that employers provide to employees to measure and dial down financial stress. Samuel J. Tamkin is a Chicago-based real estate attorney. Contact Ilyce and Sam through their website, bestmoneymoves.com.)