Been working in this profession for 17 years. Been on my own for the last 11. Never have had a situation like this and need some advice on what to do next:
First plat was filed in 6-19-70, First Replat was filed in 6-13-72. Ok everything fine. I get to do a lot survey on a Lot 66 which matches the First Replatted lot to within a few feet. Very good IMO for that surveyor. Problem is that I have a M&B for this lot which calls for part of Tract C. I don't have a tract C and thinking I messed up went back to courthouse to find this tract C. Nothing in Courthouse so I venture over to the Assessor's office and I find the "Second Replat" with a tract C. This one is not stamped but does have a note that states "Second Replat to establish Tracts A-B&C which were the East part of Lots 4-62-63-64-65 & 66 and ".... Surveying failed to record this replat on or about 12/31/72. Signed by the Developer. Ok whatever. Looks like that office is using it because deeds start to flow in by M&B. Fast forward back to my problems. My M&B doesn't agree. My lot is split into two descriptions and has a gap of 45' also being described off this unfiled second replat. FYI the Second replat is full of mathematical errors not seen on first replat. So I go to the title company that did the title work and see if we can get the developer to sign a deed for this gap to the new owner. Title company calls developer and he says "Oh yeah, forgot to record that second replat. I'll get it done soon". Ok, whatever. I call my client (which has already bought the lot without a survey) and tell him to not sign replat until we get his lot with the correct dimensions and corrected title taken care of. He agrees and just 4 days later the title company calls me back and says "Hey Phillip, courthouse just found the second replat" to which I reply "It's a miracle"! No Bill of assurance, not indexed, well never indexed. Also no Recording Stamp by Circuit Clerk. Just a copy exactly of what is in the Assessors office. This developer is, well just what would you do?
I talked with the County Judge (newly elected). He seemed to want it done right and is willing to do whatever it takes. I said lets wait and see how everyone handles the situation before he steps in.
I talked with the Circuit Clerk. She acted like it was no big deal. Even said they have done it before. I told her we need to see what the county attorney says about the situation. Her reply is "I'll call her but she is so busy" I told her I can't wait to hear her opinion. I walked away in amazement. Kinda want to know the other subdivisions she was talking about now. It bugs me even more while typing this out.
Trying not to burn any bridges but I think I have already burned the bridge with this certain title company because they found no fault in that they believed that a plat in the assessors office is just as good as the courthouse. I told them they failed in their research and should have done a better job. Which now they are just trying to cover their tracks and say "Hey, its in the courthouse now. Problem solved" I think they kinda screwed my client but the jury is still out. IMO this is a Circuit Clerk problem. How do I handle that? I'll take any help I can get. Am I completely wrong in thinking this is a big problem? I can also put up the old plats but will need a little help with posting pictures.
I am not sure that I totally follow the scenario, but I am not sure that it is a big deal. From what I understand, an unrecorded plat carries just as much weight as a recorded one in that the future deeds refer to it. That, in my opinion, would show intent of the subdivider which would make it hold up. I would think the recording would be more for future reference as it is a legal document being that it was referred to in deeds. In my county, there are many "unrecorded" plans that are on record in the Tax Assessor's Office. The deeds refer to the "unrecorded plan". There are also numerous unrecorded surveys that are referred to as well. Unless I am missing something, I just don't see it as a big deal. A survey map is simply "additional reference" in conjunction with a deed. Ultimately, what is in the deed is what was transferred, not what was shown on the map. So, I would think that would be out of the title company's scope to gather all necessary documents pertaining to Tract C. Yes, they probably should have gone the extra mile and tried to find the discrepancy but I wouldn't think that it would be a "suable" offense. But, that is why we surveyors get paid the big bucks.
Are The Mathematical Errors All On The "Second Replat"?
If so it has to be filed in order that someone can then do an "Amended Second Replat".
The circuit clerk says no big deal, but did not say there was no more work involved.
Since more than your lot are involved there are two solutions. Field survey all lots affected by the second replat, or if the judge agrees, simply provide a resolution on paper per all the deeds abd maps and hope no further mistakes are buried out there.
Paul in PA
Were you hired to survey your clients boundary, or hired to "fix" the supposed "mess"?
I'd probably step back and perform the boundary survey, documenting the evidence used and not get into the middle of the "title" battle unless specifically hired to do so. We are boundary experts, let the title experts do their job.
Are The Mathematical Errors All On The "Second Replat"?
Sounds like a plan Paul. More likely try the second option but think nothing is going to happen because the developer does not care to solve the "problem". He thinks the problem is solved. I don't understand how a plat can be filed in a courthouse without a filing stamp. Just inserted into the plat sleeve and considered a filed replat.
Completely agree Brian. But falls into the response with Paul. A plat inserted into the sleeve without stamp, signatures, BOA and a circuit clerk that doesn't care. Does that not bother you for maybe future problems with other subdivisions, if any. Looks like we should try to adhere to the rules in place instead of make them up as we go. I may be different though. That's what I believe.
Phillip,
Are the boundaries established? If not... Why not go back to the GLO plat?... What is your opinion of the Brann v. Hulett post below?
As an Arkansas Surveyor... You have an opinion... Right?
What you have described is downright criminal. And, those in charge of making sure things are done correctly should all be tossed out unless they work together to arrive at a legal fix. The problem is finding the higher authority that can make the demand for correction actually happen.
Several different offices within the county government need to know what is what and what is not what. That is their job. That is why they are elected or appointed by those elected. To do otherwise invites chaos into the system. Chaos must not be allowed to exist.
In my home county, if you were to stroll in with a deed that says "All of Tract B in Section 14........" that document would be rejected for recordation until such time as there was a correctly filed document proving the existence of said tract. The right to reject is made very clear in the State statute on deed recordation.
In our system, the person wishing to file a deed must fill out a two page form providing all sorts of data relevant to the change in ownership. This form is then routed through several other departments (clerk, appraiser, etc.). Only upon its return with no problems found by the other departments will it finally be recorded. What you describe would have to be ignored by about six different offices. That will not happen here.
In all of my years doing this I can think of only one very weird exception. This was a case of a subdivision that was triangular in shape due to one side being a railroad right-of-way and filed in the early 1870's, which was less than ten years after formation of the county. Surveyors were few and far between in those days. Most subdivision plats were drawn by someone who could draw nicely as directed by the words of the subdivision owner. Most times, the world was assumed to be square and most every block was identical to the others. In this case, after creating a standard lot and block system with standard size streets and alleys there was a tiny triangle of land left in the southwest corner. It was something like 30 feet east-west along the south line and maybe 40 feet north-south along the east line leaving a roughly 50-foot border adjoining the railroad right of way. There was no identifying label for said triangle on the plat. It simply appears as a bare triangle with no dimensions provided. You must try to make the remainder of the lots and blocks fit the exterior to determine what is left. There is no "page" identifying said triangle in the Register of Deeds index book listings for said subdivision. There is no record of the family ever attempting to convey that triangle to anyone. Today, that little triangle has grown far larger due to the vacation of the streets adjoining it on the south and east and by the abandonment of the 200-foot wide railroad right-of-way to the northwest. There is no clear owner of this parcel. One adjoiner with much other nearby property has more or less occupied the area and no one seems to care.
Holy Cow. For a little bit, I thought I was the only one that felt this way. Thanks for your response. Makes me feel better. I thought I had already turned into the "Grumpy old man". I still don't know who is the higher authority or the correct path to get this straightened out. I'm gonna wait on the county attorney and see what she says. Maybe that will be the end. Probably not.