Which more designates ownership: physical boundary or written title??ÿ I posted this under "legal" because it really isn't a survey topic.?ÿ But I'm interested in what other surveyors think about this situation.
In 1976 a married couple purchased 80 acres in a cash sale.?ÿ In 1978 (through a FmHA) they obtained funds to build a home on the land.?ÿ A 5 acre (330' x '660) description was prepared, and through financing was "severed" from the original 80 acres.?ÿ The house was built.?ÿ 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.?ÿ The father passed away about ten years ago and the mother just recently passed.?ÿ Through probate of mom's last wishes the 5 acres and house was given to the youngest daughter.?ÿ The two sons were to divide the remaining 75 acres equally.?ÿ In her will the mother described the 5 acres as "exhibit A" and a photocopy of the 1978 mortgage description was inserted.?ÿ?ÿ
Here's the catch.?ÿ In 1978 they started grading for the house construction.?ÿ They apparently ran into some subsurface conditions that weren't optimum and decided to move the site some 400'.?ÿ No "adjustments" were made in the original 5 acre description at the time.?ÿ Basically the house doesn't sit on the property described in the original mortgage.?ÿ 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.?ÿ 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.?ÿ 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.?ÿ I had a conversation with the daughter's attorney the other day.?ÿ He was intrigued with my suggestion to argue the property has always existed where it lays, regardless of what the deed says.?ÿ
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??ÿ
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It seems to me that it is clear that Moms wish is that Daughter is to get the house and five acres bounded by the fence around it. The Exhibit A description in this case is an accessory to the will and can be amended to correct for its true location since there is only one house and the intent is clear. I have no court case to support this train, but it seems like the right thing to do. The fact that the son expects something that he never new as fact is tragic and bitter.?ÿ?ÿ
1st off, THANK YOU for posting a VERY real situation, that we ALL face, where the difference between WRITTEN title, and POSSESSION varies by 0.04', 1.04' 10.04' or 400.04'.
I agree with your take. And, I'd argue it in court, (coach the atty, of course) The 5 acres WAS where it was, at the time of the FIRST transaction, for about 5 minutes, or 5 days, or 5 months, or whatever. Then, when it was discovered that "It cannot be built there", and it was MOVED BY THE PERSONS WHO OWNED BOTH SIDES. (They had the right to to do this, as they owned it all).
So, the 5 acres are under that house, and that's the end of it. Brother who is jealous should assist in correcting it, but if he won't, he should loose in court. Before court, see what atty costs, and court costs are, (say 10k) and little sis could offer brother 5-7 k for it, or even 10k, but then own 10 acres. If not, then offer all the way to 10k for "straightening out the title". IF that won't work, bang em in court. The intent is king, and intent is OBVIOUS. The end. Also, Kids should HONOR parents intents. Parents intentions are clear.
Thank you,
Nate
PS, IF the BANK had forclosed, they would have argued that they owned the house, and 5 ac that are UNDER it, and fenced. Bam, the end.
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It depends.?ÿ Does probate just give the description per the mortgage, or does it mention the house and the 5 acres it's on?
I'd think that unless there's something besides a M-B description of the 5 acres, the daughter may be SOL regarding the house.?ÿ We all know it's what the mother wanted, but unless it's written, it's tough to really know for sure.
Here's the catch.?ÿ In 1978 they started grading for the house construction.?ÿ They apparently ran into some subsurface conditions that weren't optimum and decided to move the site some 400'.?ÿ No "adjustments" were made in the original 5 acre description at the time.?ÿ Basically the house doesn't sit on the property described in the original mortgage.?ÿ
Ran into the same situation this summer. I mapped out actual location and secured boundary line agreements with the adjoiners, end of story
Great example of how innocent people screw themselves royally.?ÿ The standard person does not realize the legal implications of taking some simple action without adjusting the recorded documents.
Intent is king.?ÿ As I see it, the mother intended for the fenced area with a house to be the proper tract because she could not or did not understand exactly where the house was supposed to be based on a bunch of scribbles prepared by someone else for her to sign.?ÿ If I were the judge, it would be exactly the location of the fences whether or not that is precisely five acres.
The lender is partially at fault on this as they did not verify that construction was occurring in the proper location as a condition of their mortgage agreement.?ÿ Think what would have happened had they defaulted on the house loan years ago and there was no house on the mortgage tract.
Regardless of the rules of law that may say otherwise, the description in exhibit A is faulty and can be shown to be faulty by the fenced 330'x660' area with the house. While the faulty description should be corrected, this should not change ownership on the ground. The physical objects conveyed in the will (house and fenced area) will prevail over a faulty description. I've always operated under the premise a deed does not define property but rather allows one to get close enough on the ground to actually survey the boundary. This deed serves the same purpose but it is not as accurate as we are accustomed to. The deed's inaccuracy does not move the ownership off of the fenced area with the house to another 5 acres with no improvements.
I'm no legal expert by any measure, but it would seem clear that as the grantor owned the entire 80 acres, free and clear and the mortgage document did not legally subdivide the parent parcel and split the title, but rather was intended as guarantee to the mortgage lender compensate in the event of a default, that is the home constructed with the lender's funds, the home and fence is not only the best, but the only evidence to the location. Prior to construction, the mortgage document might have been a key piece of evidence, but subsequent to the construction and eventual release of the mortgage, that document ceased to have any bearing on the title at all. It served it's specific purpose and that purpose no longer exists.?ÿ
Just because I'm paranoid, doesn't mean they aren't out to get me.
There was no issue (barring possible prior foreclosure) prior to the probate. The mistake was made when the estate was conveyed (I presume by an executor) according to the probate judgment. The parties could seek reformation of the executor's deed (a correction deed) by petitioning the court to amend the probate.
It appears at this moment that the daughter 1) owns a 5 acre parcel, and 2) owns a home together with all appurtenances that go with it. The appurtenances would include the land under and around the home, access to and from the home, and all of the existing or necessary utility services (among any other visible uses).?ÿ
It would be in the brother's best interest to recognize the error and allow its correction without complaining. He may just end up losing both the home and the 5 acres.
Where's Duane when we need him?
@williwaw?ÿ This is exactly what I was thinking.?ÿ I've never owned a house so I don't know how the financing actually works but the first thing that popped into my head is just because a bank wrote a description doesn't mean a parcel was created.?ÿ Then I thought.. well, maybe the bank makes you deed them the property as collateral for the loan and once you pay off the mortgage then they deed it back??ÿ In which case maybe the brother has some ground to stand on?
But yeah if a separate parcel was never created then I think the daughter should tell the son to pound sand.
If the bank acquired title on a typical residential mortgage, there would be no need for them to foreclose since they'd already own it. The split in title did not occur until after the passing of the parents and the execution of their will. The title was intact prior to that event, hence the legal description written by a bank is just that, a legal description. Words that were used to describe as best they could the intent behind the loan terms. Nothing more and no split in title. That split would only happen in the event of a default on the mortgage and that did not happen.
Just because I'm paranoid, doesn't mean they aren't out to get me.
I see the word 'intent' a lot in these threads. In the world of real property (and law) Webster can get you in real trouble. In our world, intent is defined by what is written and done. That may or may not align with what grantors and grantees meant to do or thought they did.
In this case the deed was the first expression of intent, followed quickly by construction of a house and fence. The construction was an expression of intent that conflicted with that financing deed. How things play out at this point should be a matter of the law in that jurisdiction and any relevant fact patterns.
We all 'know' what should happen, but if we fail to demonstrate facts related to proper law we are engaging in wishful thinking. Last I checked that was not a professional service within the definition of professional surveying.
My .02, Tom
I was curious about this also and had to look at the will.?ÿ The part of the will that divides the land among survivors just mentions the deed.?ÿ But the "personal property" tally of tangible possessions lists "the house and all its contents" to be a possession of the daughter.?ÿ My money is on the daughter to prevail.
Interestingly the daughter also made off with the lion's share of mom's cash estate and the boys only received about 1/5 the amount between the two.?ÿ I'm guessing that's why the brother is wanting some "cash" for a deed correction.
And I also found out this has been going on for over a year.?ÿ By now I'm betting the real argument is who is going to paythe fees racked up by all the attorneys. 😉
I have one local county that insists the creation of a mortgage on a portion of a parcel dictates a split at that moment.?ÿ Therefor, in that county a full survey is required to be filed before the Deeds office will record the mortgage.?ÿ The mortgaged tract must conform to all of their silly little zoning, etc. issues as well.?ÿ They hold that a default would force a split and that might not agree with their little requirements, creating an unmarketable tract.
@williwaw?ÿ Ah-ha, the probate triggered the conveyance which makes perfect sense.
In this case the deed was the first expression of intent, followed quickly by construction of a house and fence.
I thought he said there was only a description attached to a mortgage, not a filed deed.?ÿ A deed would be harder to overcome, but probably still would allow the equitable outcome as it has a latent ambiguity that can be explained by extrinsic evidence (fence around a house).
@holy-cow?ÿ That doesn't seem terribly unreasonable to me.?ÿ What are the chances the mortgage piece and the bigger parcel are going to be owned by the same person forever, ya know??ÿ Sure it sucks to be the guy to eat that cost but... ???ú???? It'll probably prevent headaches down the road.
My story and I'm sticking to it.
Just because I'm paranoid, doesn't mean they aren't out to get me.
@bill93 The mortgage should be recorded as a deed of trust. While not a conveyance I believe it is noted as the source document for the description in the will.