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@sean-r-m
The title company should be describing what they will insure. The conveyance may or may not be the same. Your survey just tells the story for now. Hopefully they will work with you to unravel the fee and clearly attach it to the property it may have been severed from.
- Posted by: @sean-r-m
The problem that I see is that I need to determine what will be conveyed by the description that the title company provided. Say that there was no ambiguity and the document was clearly stated as an easement. The description is Lot 1; Except that portion conveyed for street purposes under recording number 1234.
Is the description the same as in the vesting deed? If so, then I’m not sure there is a problem from a survey perspective. If it can be placed on the ground, show it – both Lot 1 and the extent of the easement. If there is a question as to whether title to the easement area passed from previous deeds, put a note there directing the reader to your survey narrative, and then explain the situation in that narrative.
This is one of the major reasons that we send preliminaries of all surveys, and don’t just chuck stamped maps out the door – so that the attorneys, title folks, clients, etc. can review, comment, and if necessary clear up any possible title problems.
If this is even an problem (low probability), the title company and parties involved (and ultimately the public) will benefit more from a clear survey map combined with a good narrative.
“…people will come to love their oppression, to adore the technologies that undo their capacities to think.” -Neil Postman - Posted by: @sean-r-m
The official records control, regardless of what the title company report says. If the official document calls it an easement, then the description needs to include the road area “subject to the ROW easement” and NOT “except the ROW”
. Surveying is a legal issue.
We can do a lot more than that. After all, the good attorneys come to us when they need to clear stuff like this up.
It’s up to the attorneys when it gets to court. Out goal is to keep it out of court.
@rover83 I agree, my understanding of the OP is that the current vested title is Lot 1, except that portion coveyed to the city for street purposes. Regardless if it’s an easement or fee simple transfer to the city, title to the excepted portion was not granted to the current owner via the current description. I don’t understand the confusion.
We have to survey the title. It’s not up to the surveyor to interpret the intent. The current title is Lot 1 except, then the new owner gets lot 1 except. My 0.02 cents
It would be different if title said lot 1, subject to that portion deeded to the city for street
It is redundant and confusing to use the word “exception”. To remove the exception from the prior conveyance the term required is “Excepting and reserving”. In this case the exception was included with the lot, it is the area of the exception that was excluded from the full and free use of the subsequent lot owner.
Paul in PA
How can we “survey the title” without interpreting the intent?????
It is not as simple as you make it out. If the deed is fee simple than you are right, but if the deed is an easement it likely isn’t severed from the property unless there was some intent shown to make it a potentially useful part of someone else’s property.
Use your favorite legal search application and search for the doctrine of strips and gores.
The law presumes that the intent of a deed is not to create a ownerless strip of unusable property.
“Excepting and Reserving” does nothing to clear anything up. How can someone reserve something that isn’t theirs?
The most certain way to sever the strip is an express reservation in a conveyance. I cannot fathom why anyone would want to do that…
@oldpacer you are missing the ambiguity, first it says deed for street purposes, which would convey title to the portion in question. Later is says easement for road and utility purposes, so what is it that’s being conveyed, title or rights? Is the original grantor even alive to ask about intent? We can’t pick and choose between what is being conveyed, that is a legal opinion.
- Posted by: @chris-bouffard
first it says deed for street purposes, which would convey title to the portion in question.
If it were a deed for fee ownership it would not need to say anything about purposes.
A deed transfers some rights, in this case the right to make a street. That is clarified in the body text.
. @aliquot I mentioned it in a reply above, however, read the OP again and tell me what is, in fact, is or has been conveyed, title or rights? It’s a legal document that first says deed for street purposes. That infers transfer of title of that area. It later says easement for street and utility purposes, which infers a transfer of rights. I would just show the facts on my drawing, without being a party to or involved in the origin of the document, who could I possibly know what the intent actually is? I know several excellent Attorneys who normally don’t practice land use laws or involve themselves in land transfers and they come to me for advice or interpretations. I’m always happy to help them out for free because sooner or later I may need their services. I also know some exceptional Attorneys who deal specifically in land use and transfers. I would encourage my client to reach out to them for advice on which of the wordings are paramount, then work with the Attorney to prepare and file a corrective deed so that the issue never surfaces again, but, I’m not making the legal decisions on my own.
@bill93 Stating the purpose of the deed could limit the purpose to that use only, the same holds true for the easement, however, if it’s a fee simple transfer, that’s one thing but it’s an entirely different thing is it’s an easement transferring rights and not title. The legal ramifications down the road could be huge. Assume, in both cases, there is an accident where somebody had conveyed fee simple interest in the roadway. They are off the hook if somebody gets hurt because of some sort of defect. If it’s an easement and you retain ownership but grants rights to others for road purposes and somebody gets hurt because of a defect, you are the owner of record and are the first one on the hook when the law suits start being filed. If I made that call on a survey for my client, I then involved my self in the liability litigation.
If you have ever been named in a law suit you would understand my hesitation. You will be tied up for two years dealing with every aspect of what you did, thought and said, go to depositions, your insurance company will hire another “expert surveyor” to pour through all of your calculations, deposition recordings, communications, at the end, he or she may or may not side with you. In the end game, you will end up in mediation sessions where, even if your insurance company’s independent expert agrees with you, they will settle the case to cut their potential losses and your policy premiums will go through the roof.
Is it worth making the call yourself? You tell me. I live and practice in a state where somebody will sue you if you look at them funny.
If you do boundary surveys you are making legal decisions. Judges and attorneys can’t know the intent any more than you do. What you can do, is know how the law in your state interprets the intent.
I.E. in your state is a deed for a specific limited purpose interpreted as an easement? Is the general (the title of the document) overridden by the particular (the grant as described in the document)?
In truly unique situations and where your state laws are contradictory you will need to rely on the courts, and thus attorneys, but my guess is that this situation is not one of those. If you know a good boundary/title attorney it is often a good idea to get a second look at a situation, but passing a client off to an attorney should be a last resort, and when you need to, you should have a proposed answer and stay involved.
Everyone measures success differently, but if your measure of success involves money, renown, or respect, and your work is boundaries, sticking your neck out from time to time is better route than running when things get interesting.
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