Affidavit is ineffective cure

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If the contentions of an unsuccessful appellant are correct, there may be a large number of defective deeds in Waukesha County, and perhaps elsewhere.

In Smiljanic v. Niedermeyer, the Wisconsin Court of Appeals held on June 7 that recording an affidavit is not a valid means to correct a deed, to convey an easement. In doing so, the court declined to address the appellant’s argument that it should be valid because the Waukesha County Register of Deeds regularly accepts such affidavits.

In 1948, Etta Friedman and Rose Fox conveyed a deed to Gertrude Kozlowski, and the deed was recorded; however, the deed made no mention of an easement providing access to Oconomowoc Lake.

In 1955, the real estate broker who represented Fox and Friedman signed an affidavit, averring that the deed should have included the easement, and the affidavit was recorded, along with the original deed.

In 2004, Kozlowski’s heirs conveyed the property to Douglas D. Smiljanic, and the deed included the easement to the lake. However, the owners of the property fronting the lake, over which the easement runs, denied him access.

Smiljanic brought suit, seeking a declaration that the easement was valid. Waukesha County circuit Court Judge Paul F. Reilly granted summary judgment to the lake owners.

Smiljanic then moved for reconsideration, submitting documents showing that affidavits making corrections to deeds, including adding an easement, are commonly recorded in Waukesha County, but the court denied the motion.

Smiljanic then appealed, but the court of appeals affirmed, in a decision by Judge Margaret J. Vergeront.

The statute in effect in 1955, sec. 235.65 — the current, substantially similar version is sec. 847.07 — provided that a circuit court may correct a description in a deed.

Smiljanic argued that the statute is not the only means to correct a description, but merely one means of doing so, the recording of an affidavit being another.

However, the court rejected the argument, noting that the statute expressly provides that it does not bar an action for reformation. The court concluded that, if the Legislature intended for any other means to correct a description, it would have similarly provided for those means in the statute.

Smiljanic also argued that it is common practice for registrars of deeds to accept and record affidavits to correct legal descriptions. However, the court declined to address the argument, finding that it was not an abuse of discretion for the circuit court to deny the motion for reconsideration, which was the first time that Smiljanic raised the argument.

However, the court added that it regards the practice of county officials irrelevant to statutory construction.

Instead, the court stated that the proper procedure is set forth in sec. 847.07. Because Smiljanic did not follow this procedure, or seek reformation, the court affirmed the grant of summary judgment to the owners of the lake property.

David Ziemer can be reached by email.