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Drafter Not Bound By Its Own Deed Modification
When the city, as a seller of real estate, attaches a document to the deed at closing, but the deed does not refer to that document, may the buyer introduce evidence to establish that the document was intended to clarify the deed description? The First Department faced that issue in Liberty Square v. The Doe Fund, Inc., 202 A.D.3d 55, and precluded the purchaser from using the document to clarify the deed description.
Purchaser bought the landmark Bronx Courthouse at a public auction in 1998. In the auction brochure, the Courthouse was listed as a National Landmark and the description provided included both the tax map and a picture of the courthouse. The building's footprint exceeded the tax map lot.
At the closing, the city first proffered a deed it drafted without a metes and bounds description. After purchaser objected, it was told that none was available and if it did not close, the property would be re-auctioned. After negotiations at the closing, the city attorney left the room and returned with a tax map. She modified it in front of the purchaser's President and counsel to include the rough boundaries of the property interests being transferred to the purchaser (including, inter alia, easements by the service entrances of the Courthouse), as a substitute for the missing metes and bounds description that the city did not have to present.
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