Can a surveyor, survey a property for two neighbors in order to quick claim portions of each others property if one of said property's has a mortgage or note on it???
Glenn.D., post: 339039, member: 10565 wrote: quick claim
Quitclaim. It needn't be fast, but it does require the grantor to "quit any claim" he has in the land.j
Anyone can quitclaim their interest in land, but if a mortgagor does so I wouldn't think it'd be binding on the mortgagee.
Quit claim deeds should be avoided whenever a warranty deed would get the job done better. That is, quit claim deeds should be reserved for special cases, generally where a minor/partial interest is involved. They can be used to eliminate clouds on titles.
Title companies detest quit claim deeds where warranty deeds should have been used. I haven't checked in years, but at one time title companies would not issue a title policy on a property where the transaction was completed using a quit claim deed for 20 years after the date of the transaction. Try to get a mortgage on a property without a title insurance policy or current abstract.
I should have made my question a little clearer. I'll try again. "Can a person quit claim just a portion of their property to a neighbor to settle a boundary dispute if there is a promissory note or recorded mortgage deed on the property in question. I would think they would need the OK of the note holder to legally be able to issue a quit claim for any part of the property, for ANY reason.......... So, can a surveyor be hired and do such a survey under those circumstances, legally????
What the surveyor does will be legal. What the property owner attempts to do may be illegal. This would be no different than me having put up 100 cows as collateral for a loan, then selling some of them without telling the bank. The trucker who transported them wouldn't be doing anything wrong.
Glenn.D., post: 339064, member: 10565 wrote: I should have made my question a little clearer. I'll try again. "Can a person quit claim just a portion of their property to a neighbor to settle a boundary dispute if there is a promissory note or recorded mortgage deed on the property in question. I would think they would need the OK of the note holder to legally be able to issue a quit claim for any part of the property, for ANY reason.......... So, can a surveyor be hired and do such a survey under those circumstances, legally????
Since a person, who issues a quit claim deed, is only conveying whatever interest *they* may have in a particular piece of property, I don't think the lien holder would be subject to the quit claim unless said lien holder joined in the action.
I believe it's one word. "quitclaim", (although it's not uncommon to see it as two words).
That sounds right to me. Otherwise you could give away the full property that the lien holder owns.
I would be OK doing that. The potential problem would be that the mortgage went into defaut. The mortgage holder could make a claim on the property that was quitclaimed. The lein would still remain until the mortgage was released. The mortgage holder might see it in their interest to settle a dispute and go along or even release but they would need to be consulted.
Glenn.D., post: 339064, member: 10565 wrote: I should have made my question a little clearer. I'll try again. "Can a person quit claim just a portion of their property to a neighbor to settle a boundary dispute if there is a promissory note or recorded mortgage deed on the property in question. I would think they would need the OK of the note holder to legally be able to issue a quit claim for any part of the property, for ANY reason.......... So, can a surveyor be hired and do such a survey under those circumstances, legally????
If this is truly only a dispute over location then Quit Claim Deeds should not be used. You should use a Boundary Line Agreement with a description prepared by a Land Surveyor. You are not transferring land, only agreeing on where the boundary is located. An example could be your Deed says your property is 100' wide but there are monuments at 99.5'. You and your neighbor agree to use the monuments; you are not exchanging lands, just agreeing on the common boundary location.
On the other hand, if you know you are exchanging lands then you should follow the boundary line adjustment procedure as prescribed by local law and this will require lender approval. An example could be the case where there are encroachments, say a building is five feet over the boundary. You and your neighbor agree to exchange lands to cure the problem without moving the building.
Be careful, though, not to create a situation where your lender could call in the note. You really should obtain the advice of an experienced Real Property Attorney.
Holy Cow, post: 339059, member: 50 wrote: Quit claim deeds should be avoided whenever a warranty deed would get the job done better. That is, quit claim deeds should be reserved for special cases, generally where a minor/partial interest is involved. They can be used to eliminate clouds on titles.
Title companies detest quit claim deeds where warranty deeds should have been used. I haven't checked in years, but at one time title companies would not issue a title policy on a property where the transaction was completed using a quit claim deed for 20 years after the date of the transaction. Try to get a mortgage on a property without a title insurance policy or current abstract.
Sure, a title company likes a grantor to warrant the conveyance as it lessens their insurance exposure. As grantor paying for insurance I'd like to get something for my money and actually have the insurance take the risk for researching and insuring the title. A lawyer once advised my to never convey by other than a guitclaim. If you warrant and there is a problem you pay. This lawyer had sued over the issue and someone payed for their warrant. Make title insurers back up their insurance.
The Federal Government Deeds and Railroad Deeds I have seen were all quit claims.
Read the above definition of a quitclaim.
Then, think about it.
Party A owns a lot, and Party B owns a lot. They are side by side. Some of A's buildings are on B's lot. Some of B's buildings are on A's lot.
They resolve to settle it with Quit claims, and SKEWING the dividing line, between the lots, so that each keeps his buildings.
So, A, QC's to B, a triangle. and, B QC's to A another triangle. These 2 guys go home happy.
BUT, there were mortgages!
If they BOTH finish paying for their Mtg, then all is well.
BUT if either of them goes into foreclosure, then the BANK still has a claim to the ORIGINAL lot. (they were not a party to the QC acts). The reasoning behind this, is somebody could (in theory) mortgage his lot, then QC the part of the lot with his home on it, to his neighbor, or son, then let the bank foreclose on the empty remains of his lot, and the bank would be "defrauded".
So, if you want to do this officially, you would need the bank to ALSO sign of a RELEASE of the triangle being deeded to the ad joiner. And, the bank would want to look carefully, that it was actually not being tricked into defrauding itself.
I hope this helps.
N
It depends on whether this is a boundary line agreement or a boundary line adjustment, and what regulations governing those acts are in place in your area. As long as the surveyor advised you of the law, and didn't draw up the documents, he/she could prepare a "map of potential boundary agreement/boundary adjustment" until the cows come home. What you do with it is not the surveyor's problem. Conditions on the ground may create the need for the surveyor to file a record of those conditions.
One could do the quitclaim without involving the lender, but to deal with the mortgage issue you'd want a Partial Reconveyance from the lender whereby they release their interest in the area being transferred to the neighbor. The problem is that there is nothing in it for the lender, or that there is little equity built up in the losing property, so the lender could just say no altogether or make you pay their costs. A local lender might be more receptive than one headquartered across the country somewhere.
Good luck.
Glenn.D., post: 339064, member: 10565 wrote: I should have made my question a little clearer. I'll try again. "Can a person quit claim just a portion of their property to a neighbor to settle a boundary dispute if there is a promissory note or recorded mortgage deed on the property in question. I would think they would need the OK of the note holder to legally be able to issue a quit claim for any part of the property, for ANY reason.......... So, can a surveyor be hired and do such a survey under those circumstances, legally????
Some States require interest holders acknowledge documents impacting the subject property. You may find yourself helping a client dig a deep hole. They may find themselves owing money on something they hold no rights in. Worse yet part of what they are paying on could be foreclosed on.
Regardless of the underlying dispute I would avoid the use of quit claim deeds. They are generally horrific instruments. Resolve ambiguities by agreenent. Transfer property by warranty deed.
My .02, Tom
Glenn.D., post: 339064, member: 10565 wrote: I should have made my question a little clearer. I'll try again. "Can a person quit claim just a portion of their property to a neighbor to settle a boundary dispute if there is a promissory note or recorded mortgage deed on the property in question. I would think they would need the OK of the note holder to legally be able to issue a quit claim for any part of the property, for ANY reason.......... So, can a surveyor be hired and do such a survey under those circumstances, legally????
An exchange of title by quitclaim deed (especially for a "portion" or strip of land) will definitely affect the outstanding mortgages. There is no problem as long as neither of the tracts of land goes to foreclosure. If a foreclosure does take place, all kinds of problems can occur. The foreclosure action on the property that conveyed the strip could result in a voided title exchange as the mortgage still encumbers the original parcel including the strip. A foreclosure against the parcel which received the strip could result in the strip being left in the name of the person foreclosed upon resulting in three pieces of property; one owned by the bank, the strip owned by the party foreclosed upon and the adjoining parcel which gave up the strip. There's also a potential problem with subdivision regulations that are violated when a strip is exchanged by quitclaim deed. Bottom line, it's a potential cluster no matter how it's approached with a quitclaim deed exchange.
Because the purpose of the document is to settle a boundary dispute, it would likely be more appropriate to enter a boundary agreement (joint owners' affidavit) settling the location of the disputed boundary. A boundary agreement is not considered as an exchange of title so there is no effect on the outstanding mortgages. There is also no violation of subdivision ordinances as no third parcel is created. A boundary agreement would provide a much cleaner solution.
As far as a surveyor being hired under the circumstances, I would highly recommend it. "Legally"... there's no law that prevents it that I'm aware of. The surveyor should be able to prepare the descriptions necessary for the agreement and, depending upon the jurisdiction, may be able to take care of all the documentation as well. If the boundary is already under litigation, that may change the rules of the game entirely.
JBS
That is one of the most aggravating hurdles in the business of obtaining easements and R/W...getting approval of a lien holder. While there are no specific laws, the mortgage contracts are pretty much iron clad and prohibit even a partial conveyance of mortgaged property without the mortgage grantee's approval. Bad juju happens quick with lenders when that happens...
From a real estate publication (concerning the built-in-clause in mortgage contracts that prohibit such) :
"That protection is the signed mortgage that gives the bank a special kind of lien on the property. Most mortgages provide that the real
estate owner cannot convey (sell) a fee simple interest in the property to someone else without first paying off the bank loan. And if the real
estate owner fails to pay this loan, the bank can foreclose its mortgage lien,sell the property, and pay off the loan from the proceeds of the sale."
