3.92 Curative Acts


In General

A curative statute is one which corrects errors and irregularities in past acts, transactions or legal proceedings and renders them valid and effective for the purpose intended. It operates by completing a transaction which the parties intended to accomplish but which they carried out imperfectly. An insufficient attempt to perform a legal act is then converted into a complete legal act. An act inadequately performed becomes the equivalent of an act completely and perfectly formed.

Curative statutes are not effective until the period of time set out in the statute has passed. These statutes relate to instruments affecting the title to real property which have been or may hereafter be recorded.

It should be noted that curative legislation does not apply to every kind of error and mistake. Generally speaking, legislatures have seen fit to adopt curative measures only in connection with certain common or frequently occurring kinds of irregularities, particularly those due to misconceptions or misunderstandings about essential conveyancing requirements. It is not the function of curative acts to supply every missing link.

Therefore, it is important for any title examiner or underwriter to be familiar with the curative statutes of the particular state where the property is located. Objections that are immaterial to the title should never be raised. These curative statutes in the various states are a great aid in waiving title defects that afflict the chains of title. For example, in Texas a defective acknowledgment in an instrument recorded for more than 2 years need not be contested.


Distinction Between Curative Acts And Statutes

A curative statute corrects and completes a particular transaction which has failed by reason of some defect or irregularity; a statute of limitations, on the other hand, bars the assertion of all rights or interests regardless of their nature.

In a sense, statutes of limitations are more comprehensive and more inclusive. Their shortcomings, however, are in requiring the passage of undue periods of time, and often, in failing to produce a marketable title of record even after the expiration of the prescribed periods of time. A curative statute, on the other hand, may operate immediately or after the expiration of a relatively short period of time.

It may, in addition, result in giving marketable title. Both may operate to transfer title, the latter by completing a transaction attempted by the parties, the former by barring the assertion of an outstanding right or interest acquired or retained by one of them by reason of some irregularity in the transaction. Statutes of limitations are passive or negative. Curative statutes are active and positive.