February 6, 1997
Scott A. Abdallah
Lincoln County State's Attorney
200 East Fifth Street, Suite 2
Canton, SD 57103
OFFICIAL OPINION NO. 97-02
Affidavit of correction
Dear Mr. Abdallah:
You have asked for my opinion concerning the following situation.
FACTS:
I recently received a letter from the Register of Deeds for Lincoln County which requested an opinion regarding the filing of "Affidavits of Correction."
I have enclosed a copy of this letter for your review.
It apparently has become a standard practice statewide for a Register of Deeds Office to accept Affidavits of Correction which indicate that a dimension of a plat of record should be corrected. I have enclosed an example of this type of instrument for your review.
As you can see from her letter, the Lincoln County Register of Deeds is unsure as to whether she should continue to accept these Affidavits of Correction. She has expressed concerns in light of SDCL 11-3-3, SDCL 11-3-6 and SDCL 11-3-8.
The Register of Deeds has asked the following questions:
QUESTIONS:
1. SDCL 11-3-4 states that every plat shall be certified by the surveyor, and the landowner, or his agent, and the landowner/agent certification shall be acknowledged. Given this statutory language, should the Affidavit of Correction also be signed by the landowner/agent and acknowledged to show that the owner is aware of the correction?
2. SDCL 11-3-6 and 11-3-8 require notification and/or approval of a plat by the applicable governing body. Should there also be an endorsement by the governing body on the Affidavit of Correction in order to verify that the governing body has been made aware of the correction?
3. Once an Affidavit of Correction is filed, does it invalidate the original plat, and what should be done about cases where another surveyor may have requested a copy of the original plat prior to the Affidavits of Correction being filed?
IN RE QUESTIONS NO. 1 AND 2:
SDCL 11-3-4 provides:
Every plat provided for in this chapter shall be certified by the registered land surveyor, and his official seal attached thereto as specified in § 36-18-27.1 as being in all respects correct. The landowner, or his duly authorized agent, shall certify that the plat has been made at his request and under his direction for the purposes indicated therein, that he is the owner of all the land included therein, and that development of this land shall conform to all existing applicable zoning, subdivision and erosion and sediment control regulations. The landowner certification shall be acknowledged before some officer authorized to take the acknowledgment of deeds and, with the certificate of such acknowledgment, shall be endorsed on or attached to the plat and be recorded as a part thereof in the office of the register of deeds of the proper county.
No such plat may be recorded until all the provisions of this section have been fully complied with.
Certificates from the county treasurer and the director of equalization are also required. SDCL 7-9-6; SDCL 11-3-9. Furthermore, SDCL 11-3-6 provides that if a plat is for lands within or adjoining a municipality, the governing body must approve the plat by resolution. The city auditor or finance officer is to endorse a copy of the resolution on the plat and certify the same. No plat may be recorded unless it contains the resolution and certificate of the auditor or finance officer.
SDCL 11-3-8 establishes similar requirements for the recording of plats on lands lying outside a municipality. No plat may be recorded unless it contains the resolution of the board of county commissioners approving it and the certificate of the auditor endorsing the resolution on the plat.
I assume that when the plat about which you inquire was originally filed, it contained the appropriate certificates of the surveyor, the owner, and the certified resolution of the governing body of the appropriate governmental entity. I also assume it contained the tax certificate of the county treasurer required by SDCL 7-9-6, the certificate of the director of equalization under SDCL 11-3-9, and that the approval of the appropriate highway or street officials was obtained pursuant to SDCL 11-3-12.1. The question posed is whether any or all of those approvals and certifications are required again when the surveyor discovers an error in the plat and seeks to record a corrected version.
This issue is a matter of statutory construction. The goal is to determine the intent of the Legislature. In determining that intent it is appropriate to look not only to the words used in the statute at issue, but also to examine other statutes on the subject as well. Words used in the statute are to be given their plain, ordinary and popular meaning, unless the content clearly requires otherwise. American Rim and Brake Inc. v. Zoellner, 382 N.W.2d 421 (S.D. 1986); Border States Paving v. Department of Revenue, 437 N.W.2d 872, 874 (S.D. 1989); Whalen v. Whalen, 490 N.W.2d 276 (S.D. 1992); SDCL 2-14-1.
Initially, it must be noted that there is no statutory mechanism for correcting errors in plats. Title standard 5.6 in the Marketable Title Act, SDCL ch. 43-30, allows use of an affidavit to correct discrepancies "in names and in other cases where it may be accepted as curative evidence under South Dakota statute." SDCL 43-28-2, SDCL 43-28-4, and SDCL 43-28-4.1 all deal with recording of affidavits for a variety of purposes relevant to real property. Although SDCL 43-28-4.1 provides for the recording of affidavits stating facts "touching the identification of any plats or subdivisions of any municipal corporation," I am unable to equate "touching the identification" with correcting measurements within the plat.
SDCL 11-3-4 clearly states that "[e]very plat" has to be certified by the surveyor and landowner, and further provides that no plat may be recorded until there is compliance with all the provisions of the statute. SDCL 11-3-6 and SDCL 11-3-8 contain similar language. Although styled as an "Affidavit of Correction," the corrected instrument being filed is really a new plat, and should follow the same process as the original.
One of my predecessors opined that a replat or correction plat which corrected the length of the lots could not be filed without the certificate of the county treasurer required by what is now SDCL 7-9-6, because of the "any plat" language in that statute. 1945-46 AGR 229. Another opined that the register of deeds was entitled to collect statutory fees under what is now SDCL 11-3-11 when a plat was recorded a second time, apparently without any changes to the original filing, because there was no statutory provision specifying different fees for recording a second time. 1931-32 AGR 524.
The logic for requiring a corrected plat to follow the same process for recording as the original plat is especially strong where the approval of the local government is concerned. A city council looks at a plat for the purpose of determining whether it appears that the system of streets set forth therein conforms to the system of streets of the existing plats of the municipality, that all provisions of any subdivision regulations have been complied with, that all taxes and special assessments upon the tract or subdivision have been fully paid, and that such plat and the survey thereof have been executed according to law. . . .
SDCL 11-3-6. A county commission must make similar determinations. SDCL 11-3-8. The applicable approve processes are described in SDCL chs. 11-2, 11-4, and 11-6.
It is certainly possible that the error that the surveyor seeks to correct concerns a matter that the appropriate governing body would not have approved if it had been that way on the original plat. Perhaps the correction changes the location of a street or alley so that it no longer conforms to the existing street system, makes access to adjoining unplatted lands inadequate, or perhaps the new lot size violates subdivision ordinances. Matters of that sort would not be detected if an Affidavit of Correction is filed without the safeguards built into the statutes.
The correction may also impact the approval that the owner is required to secure from the appropriate highway or street officials pursuant to SDCL 11-3-12.1. Thus there is need for the owner to be aware of the correction.
Furthermore, depending on how soon the error in the original plat is discovered, it is possible that there are owners of land in the platted area, in addition to the owner who had the land platted, who are impacted by the correction. The local government and public are impacted because the recording of the original plat was a dedication of the streets, alleys and other public uses marked or noted on the plat, which the local government may have already accepted. These owners and governmental bodies are deprived of the statutory mechanisms in place to help them protect their interests if it is possible to simply file an Affidavit of Correction.
It is my opinion that the Affidavit of Correction is a replat and must follow the same procedure for recording as the original plat, including the certification of the landowner and the approval and certification of the appropriate local government officials. The tax certificate of the county treasurer required by SDCL 7-9-6, and the certificate of the director of equalization should also be attached.
IN RE QUESTION NO. 3:
In my opinion, the appropriate procedure to follow is to vacate the original plat, in whole or in part, and then seek to replat in a manner that corrects the original error, if that is still possible. Vacation procedures are found at SDCL 11-3-16 and SDCL 11-3-17, with supplemental vacation procedures outlined in SDCL 11-3-20 to SDCL 11-3-24.1, inclusive.
