When title and boundary disagree
Which more designates ownership: physical boundary or written title? I posted this under “legal” because it really isn’t a survey topic. But I’m interested in what other surveyors think about this situation.
In 1976 a married couple purchased 80 acres in a cash sale. In 1978 (through a FmHA) they obtained funds to build a home on the land. A 5 acre (330′ x ‘660) description was prepared, and through financing was “severed” from the original 80 acres. The house was built. All went well and the mortgage was eventually satisfied returning clear and marketable title of the entire 80 acres to the couple.
The folks raised their children there. The father passed away about ten years ago and the mother just recently passed. Through probate of mom’s last wishes the 5 acres and house was given to the youngest daughter. The two sons were to divide the remaining 75 acres equally. In her will the mother described the 5 acres as “exhibit A” and a photocopy of the 1978 mortgage description was inserted.
Here’s the catch. In 1978 they started grading for the house construction. They apparently ran into some subsurface conditions that weren’t optimum and decided to move the site some 400′. No “adjustments” were made in the original 5 acre description at the time. Basically the house doesn’t sit on the property described in the original mortgage. I’m guessing no one really cared since they “owned it all” anyway.
Sometime soon after construction was completed in ’78 or ’79 the owners fenced a tidy 330′ x ‘660’ rectangle around the house, some 400′ east of where the description was placed. None of this came to life until the daughter (now living in the house she received through probate) attempted to obtain a home-improvement loan for the house.
The brother who (on paper anyway) owns the land underneath the house now wants recompense to ‘swap’ 5 acres around to settle the mess. I was asked to prepare a description of the fenced 5 acres with the house.
This has turned into a real hairball. There are 3 legal firms and a title company fixing to duke this out. I had a conversation with the daughter’s attorney the other day. He was intrigued with my suggestion to argue the property has always existed where it lays, regardless of what the deed says.
What should be some simple document swapping has turned into a real fiasco; in my opinion due primarily to the brother’s greed and the attorneys that won’t pass up a chance to run a bill up on someone.
So what do you do when the written deed disagrees with the physical location?
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