Rant on.
I take on a small subdivision. Looks like it will be an easy one and I can do what they call an 'abbreviated plat' around here. Basically don't have to jump through all the hoops with the local platting board. Should be cake .... right.
Property is bisected by a major highway but not divided by it. The ROW interest held by the State is an easement interest based on Public Land Order 601 for 150' of width.
Get the title report and immediately hit a snag. The warranty deed the client received 25 years ago for his parcel, basically an aliquot part description, rather than describing the highway ROW as 'subject to' (as in an easement?), the numb-nuts that prepared the legal used the term 'excluding', effectively splitting the estate and creating a convoluted mess of his title.
It's looking like the only way this thing will move forward is for my client to obtain a corrective deed from the now deceased assignor's heirs.
What a PIA. Now I have to tell the client, a rather simple minded but good natured fellow, that he needs to go out and hire an attorney because this is a title issue and must be resolved before his little subdivision can move forward. I'm not sure what other recourse he has.
One would think a title company would know the difference between 'excluding' and 'subject to', but some of my more recent experiences with title companies leaves me filled with doubt. o.O
Rant over. Carry on.
I would want to see the specific language that accompanies the word "excluding" to agree or disagree with you. I could see something like "excluding the interests of the state" which in my mind would only be the easement. Words and details matter.
Exactly Why Do You Need The Right Of Way Included?
Since the subdividing authority may want it excluded anyway.
However, the current owner has owned the parcel sufficiently long to claim possession of the underlying fee in the highway. The current owner has crossed and recrossed the underlying fee to access the paved highway. The previous owner probably has done nothing to assert his title over the underlying fee.
Have the current owner file a corrective deed from self to self with inclusive language for the right of way, making sure all previous records, transfers and actions in the interim by the current owner are extensively recited. Especially of note are how the taxes are billed for the parcel or parcels.
Paul in PA
Both Dave and Paul's points are worth considering, I think.
Perhaps you could have a brief consultation with the best real-estate attorney you can find. It would take less time for you to do that than for the client to do it. Find out what corrective action is needed, if any, and/or what might happen if you just platted over the situation. Report to the client, and bill the legal time as an expense.
One local title company has been screwing with people's deeds for decades. In our area, nearly every rural property has some portion that is under a county road. Typically one or two strips roughly 20 to 30 feet wide along the sides of the property. Fee title extends to the section line, but the usable area stops short. This specific title company has been involved in writing (and rewriting) several thousand deeds as a sort of one-stop-does-all type of service. Take a very simple tract description such as: The southwest quarter of Section 22. Their descriptions always say: The southwest quarter of Section 22 less County roadways.
They can't comprehend that they are leaving a bunch of fee title land out of their description simply because they aren't going to insure the roadways. Technically, there are such strips all over that county and a few nearby counties.
This forces me to explain to clients the same type of problem as described in the original post above.
Your post rings so close to home. I just sold a home that has a county road cutting across one corner. On another side, I have 20' of a vacated road. When we were at the closing table and the deed was presented to me for signature, they added to the property description "excepting therefrom that portion of County RD XX". I told the closing agent that I couldn't sign the deed because of the addition to the description. She leaves the room and makes a call to her underwriter, comes back into the room and puts him on speaker phone. He tries his best to explain to me why he wanted it added and the real kicker was he said he added it because the County's GIS map showed it that way. I told him that he had already addressed the county road in the title commitment exceptions and that I was not going to transfer ownership of only part of the property. I was conveyed the road bed and the county has a prescriptive easement across the property. I also told him I wanted the description verbatim of the deed I received. I'm selling everything I own, not a portion.
While this conversation was going on, my real estate agent was in a panic and going thru her file feverishly trying to come up with a solution. It delayed the closing about 30 minutes, I got my money, the real estate agent got hers and the closing agent hers. I was thanked for bringing it up by all and was told by them they all learned something.
I wanted to collect on a consultation fee, but was denied. At the end, they asked what I did for a living. I said I'm just a land surveyor and it's my job to know yours so I can effectively protect the health, safety and welfare of the public. I enjoyed it. Victory was mine!
SD
10 million attaboy's
are hereby awarded to you, sir.
SUB D VIDER
That was Good. Real good.
Maybe a simple gift of a Dictionary, and a few copies of a law book would be in order, for a Christmas gift, to these yahoos!
🙂
He he he
...ALSO EXCEPT any portion lying within the right of way of the Glenn Highway".
Yes. Words do indeed matter.
I don't expect anyone to draw any conclusions without the benefit of all the details. Just venting. Everyone's comments and suggestions are much appreciated.
Description authors everywhere (including surveyors) have been screwing up descriptions of properties subject to, and adjacent to public roads since day one. I can see that prescriptive rights gets confusing, but it still happens when records are explicit about what rights were granted to the public.
When did the current description first appear in that form? Could the grantor then have retained title to any adjacent lands? Is there anyway the fee title could end up in the public's hands? What difference does it make to your project? Can underlying fee title be counted towards meeting minimum parcel size?
That Is Why Many States Have Laws...
.. that confer title to the underlying fee despite incorrect words in deeds that say otherwise.
Paul in PA
Is the title company willing to issue a title policy or certificate to plat that covers the area under the highway? If so, I would suggest talking with the relevant platting authority. Unfortunately there is not much in the way of court decisions in Alaska regarding the strips and gores doctrine, but the probability of an adverse claim is slim. Some platting authorities have developed notes to handle situations like this.
Incidentally PLO 601 did not create easements. The easements for "through" roads were created by PLO 1613.
:good:
Thank you for the correction.
I use a continuous and/or bold line type for the boundary.
Everything else is accordingly line typed, elec, gas, etc
Easement extents are usually dashed and within the dashed lines it is labeled what it is and where it is recorded and if necessary amount of land covered.
This highway would fall under my dashed line category.
