This Week's Q & A

Q: The condominium I purchased recently has an attached balcony accessible only through my bedroom door and the bedroom door of the unit net to mine. The purchase and sale agreement specified that the other unit owner and I would share exclusive use of the balcony. The problem is, the agreement identified the adjoining unit incorrectly, effectively giving me exclusive use (with this other unit) of a back porch that is accessible to all units from a back hall and is designated elsewhere as a common area. The owner’s attorney corrected the mistake in the P&S and the owner and I initialed the correction. However, the original (erroneous) reference remained in the documents that were ultimately recorded at the Registry of Deeds. I have called the attorney several times and sent him a letter with a copy of the documents, but the closing was more than two months ago, and he still has not made the correction. Is there a relatively simple way to correct this mistake that does not require incurring the expense of hiring an attorney?

A: It seems that nothing is ever simple in real estate, but correcting this problem may be. In fact, according to the attorneys I consulted, it is possible that you won’t have to do anything. In most condominiums, someone has worked through who has the right to use what, and exclusive use arrangements typically are specified in the condominium master deed. If that is the case here, you have no cause for concern even if your unit deed is incorrect; the master deed’s accurate description will establish your rights. If the master deed does not include this description for some reason – for example, because the balcony was added after the master deed was executed – then you will want to correct the recording. That is a fairly easy process, I’m told, but you will want an attorney to handle it. To make the change, you and the seller would execute what is known as a “confirmatory deed,” adding language to the original deed. The new filing will explain why the addition is necessary and specify that in all other respects, the original deed “is continued and confirmed.”

The easiest solution, and the one that involves no added expense for you, is to have the closing attorney make the change, if it is required. The attorney may not have returned your call because he realizes that this is really a non-issue (because the master deed language is accurate) and has not bothered to share that information with you. This is rude and unprofessional, but it may be an indication that no action is required. I suggest that you write the attorney outlining your concern and stating that you would appreciate a return call. This sets up a conversation with the Board of Bar Overseers, to whom you could complain if the attorney continues to ignore your request.

Another option available to you, if you have an owner’s title insurance policy, is to contact your title company, which will review the documents on your behalf and make any changes required. Your only other option is the one you want to avoid – hire an attorney to do the document review and file the corrected deed for you.