DIRT Board Commentary regarding 'surveys' & surveyors

[DEREK G. GRAHAM OLS OLIP]

Continuing DIRT Board Commentary

From: Mike Dalton [mailto:[email protected]]

Amen, Chris. My experience in Missouri is that some surveyors perform the unauthorized practice of law more than title agents do, which is really saying something!

Michael H. Dalton

Executive Vice-President
Chief Title Officer
Monarch Title Company, Inc.

President
Monarch Title of Northern Missouri, Inc.
Monarch 1031 Exchange Corp.

“Service with Distinction”
320 E. Broadway, Suite D
Columbia, MO 65201
ph: 573-441-0725
fax: 573-441-0705
[email protected]

From: BROKERDIRT – Real Estate Brokers Discussion Group [mailto:[email protected]] On Behalf Of Patrick Randolph (UMKC Dirt)
Sent: Monday, August 02, 2010 9:35 AM
To: [email protected]
Subject: [BROKERDIRT] Chris Burti responds to Derek Graham, Surveyor

From: Chris Burti [mailto:[email protected]]

Pat,

If this reply is over the top, please edit it or delete it. [Pat sez: I did neither]

I have, for years, remained silent or hit the delete key instead of send while Messr. Graham has lambasted the legal profession and the title industry with the supposed superiority of the work product of the cadastral land surveyor in protecting a property purchaser. Well, his hyperbole has gone too far in this post in my opinion and I feel I must respond. I do not intend to castigate him of flame him and I certainly can’t speak for Messr. Graham’s skills and qualifications because I haven’t seen his work nor do I have the benefits of cadastral surveys, because we don’t have such a system here in North Carolina (and which I suspect will be the similar experience in most of the states east of the Mississippi…GIS Mapping is not the same beast), but I can address the relationship between surveying, the legal profession and the title industry based on my experience here in North Carolina now in my fourth decade of a career concentrated in assuring property transfers.

Every prudent property purchaser should:

1. Obtain a survey performed by a competent surveyor who carries adequate E & O insurance coverage.

2. Have a title examination performed by competent attorney who carries adequate E & O insurance coverage.

3. Purchase a title insurance policy issued on behalf of a financially sound insurer.

When they choose to forego the benefit any of these services to save the relatively insignificant cost of each, they do figuratively ‘roll the dice’, because it is the three professions, working together, that provides the landowner the most assurance of avoiding a loss resulting from a title issue. Not only do they bring their individual expertise to bear on the task of assuring good title, when they do their jobs well, they often tend to find each other’s infrequent errors before closing as well.

With respect to the surveyor, (and not to imply that there aren’t equally significant shortcomings with the other two professions as well) our industry regularly pays out policy claims resulting from surveying error. In North Carolina, my experience suggests that most of these errors tend to be found outside the limitations period for recovery against the surveyor. When problems are discovered within the limitations period, the surveyor at fault rarely has errors and omissions insurance coverage and often is judgment proof leaving the landowner only protected by title insurance. In addition, surveyors can only work to form their opinions within the constraints of the land law of their particular jurisdiction. Several of the surveying principles pronounced by Messr. Graham as if universal are absolutely inapplicable here. I can say with reasonable assurance that in North Carolina there still exist countless parcels of land that have never been surveyed. Even more numerous are the parcels that have only been surveyed in antiquity and the accuracy and precision employed by the surveyor can be most generously said to be dubious at best. Our files are replete with claims arising from lappage created by surveyors erroneously relying on legal principles they do not fully understand and who are unwilling seek counsel.

To assert that any one of these professions is indispensable to the title assurance process because of its supposed superior protections is to engage in a verbal game of “Rock, Paper and Scissors’.

Best regards,

Chris Burti
Vice President and Senior Legal Counsel
Statewide Title, Inc.
110 East Arlington Boulevard
Greenville, NC 27858
800-522-8694
Fax 800-522- 8563
Mail to: [email protected]

[DEREK G. GRAHAM OLS OLIP]

Continuing DIRT Board Commentary # 2

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From: DIRT – Real Estate Lawyers Listserv [mailto:[email protected]] On Behalf Of Patrick Randolph (UMKC Dirt)
Sent: Sunday, August 01, 2010 2:39 PM
To: [email protected]
Subject: [DIRT] FW: [DIRT] Title Insurance, title v. possession

From: Derek G. Graham OLS OLIP [mailto:[email protected]]

Colleagues in real property-

I could go on ad nauseum but, in short, my position is made by this case.

The purpose of an opinion of a cadastral surveyor is to preclude such occurrences as this “misdescription”

The well respected Ontario lawyer, Bob Aaron http://www.aaron.ca/ in his column of May 1, 2010 http://www.aaron.ca/columns/2010-05-01.htm put it well:

“It has underscored yet again the fact that the single most important document in any real estate transaction is the land survey — formally known as surveyor’s real property report”

One can have all the paper “insurance” one wishes, but the only professional opinion connecting the parcel’s deed to the ground is the professional surveyor’s opinion, never ever, title

insurance.

Makes one wonder why so many are so prone to put their dollars into a papering over of risk on a major purchase, so far from the craps table !

Is it humbuggery ?

YOS,

Derek G. Graham OLS (Cadastral) OLIP
Professional Surveyor
Land Use Planner
Drainage Engineer

Derek G. Graham Limited
7669 Colborne Street East
RR #1 Fergus, Ontario
Canada
N1M 2W3

There is scarcely anything in the world that some man cannot make a little worse, and sell a little more cheaply. The person who buys on price alone is this man’s lawful prey.

John Ruskin

_____________________________________________________________________________

[DEREK G. GRAHAM OLS OLIP]

Continuing DIRT Board Commentary # 3

Patrick Randolph (UMKC Dirt) wrote:

From: Michael Mnichowicz [mailto:[email protected]]

Peter:

Mr. Zwillinger’s question points you in the direction you need to go. With respect to your “title” question, I humbly suggest the following, as a problem-solving approach:

First, to answer your question, there is a critical difference between “title” and “possession” (look ’em up in Black’s). Determine in whom “record” title to each parcel is vested–your title company can provide you with informational commitments establishing this fact. “Record title” is further “subject to….” a number of things, one of them being “possession,” and that possession may be rightful or wrongful. Once you have determined the rightful (and possibly wrongful or adverse) possessors of each piece, you must now form an opinion whether the exiting title policies insure the holder of record title against the claims of the possessors of each parcel, and whether your client is an “insured” entitled to protection from a “possessor”. Then, make your claim, or if you can’t, file your declaratory/quiet title action.

your description omits one important fact: the 1982 policy insuring that “title” is/was in the “purchaser/seller”–is that title to the real 100/100 piece or the wrong one with the house on it?

Good Luck and Lawyering,

–Mike

Michael J. Mnichowicz

Attorney
MURN & MARTIN, S.C.
N20 W22961 Watertown Road
Waukesha, WI 53186
(262) 524-8500
(262) 524-9200 (fax)

also licensed in Arizona

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From: DIRT – Real Estate Lawyers Listserv [mailto:[email protected]] On Behalf Of Patrick Randolph (UMKC Dirt)
Sent: Friday, July 30, 2010 2:48 PM
To: [email protected]
Subject: [DIRT] FW: [DIRT] FW: Title Insurance, title v. possession

[DEREK G. GRAHAM OLS OLIP]

Continuing DIRT Board Commentary # 4

From: Gary Zwillinger [mailto:[email protected]]

If I understand your facts correctly, your client owns the 100 X 100 acre parcel to which it received a deed (and should have title insurance covering such ownership) unless it has been lost to an adverse possession claim by some third party. Your client has also likely accrued to ownership of the property on which it built its house by adverse possession, assuming state law conditions to an adverse possession claim have been met. Is someone saying that your client doesn’t own the 100 X 100 strip they purchased but on which no house has been built?

Gary R. Zwillinger

Zwillinger Greek Zwillinger & Knecht PC

2425 E. Camelback Road, Suite 600

Phoenix, AZ 85016

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From: DIRT – Real Estate Lawyers Listserv [mailto:[email protected]] On Behalf Of Patrick Randolph (UMKC Dirt)
Sent: Thursday, July 29, 2010 8:57 AM
To: [email protected]
Subject: [DIRT] FW: [DIRT] FW: Title Insurance, title v. possession

From: Orlik, Randy P. [mailto:[email protected]]

What was the legal description on the deed. The property the house was on or the 100×100 parcel? In other words did everyone just think the house was on the property being conveyed?

From: DIRT – Real Estate Lawyers Listserv [mailto:[email protected]] On Behalf Of Patrick Randolph (UMKC Dirt)
Sent: Wednesday, July 28, 2010 8:25 AM
To: [email protected]
Subject: [DIRT] FW: Title Insurance, title v. possession

From: Peter Ojala [mailto:[email protected]]

Does general exceptions save Title Insurance Company in WLTA 1976 policy where insurance states it is insuring that title is in a certain person, when that person was (very likely) not in title by adverse possession (or not in title b/c the deed should be reformed)?

i.e. there is a distinction between title and possession.

General Exception refresher: “Encroachments or questions of location, boundary and area, which an accurate survey may disclose; public or private easements, streets, roads, alleys or highways, unless disclosed of record by recorded Plat or conveyance, or decree of a Court of record; rights or claims of persons in possession, or claiming to be in possession, not disclosed by the public records; …….”

Facts: (altered but materially the same)

1925- farmer sells a small 100 x 100 parcel out of the corner of his section.

1925- purchaser builds house on geographically flat area next to the 100 x 100 parcel.

Property passes from purchaser to purchaser to purchaser/Seller then finally to my client in 1982.

2010- county assessor tells my client his house is not built on his legal description.

Aerial photos from 1960s and 1970’s clearly show farming on the 100 x 100 parcel, and the house on a ~100 x ~100 area 200’ from the deeded parcel.

1982 title insurance insures my client that Title is in the Seller in 1982.

My understanding would be first this claim comes within the affirmative coverage of the policy, but second, it may be excluded by the General Exception above.

I would argue that it is not excluded because the issue is whether title is in the Seller, not whether Seller is not in possession, not whether there are encroachments, not where the location of the lines of the parcel are, etc.

This is probably old news for a lot of you, but is fresh and new to me, a beginner.

Thanks,

Peter

[dave-karoly]

Continuing DIRT Board Commentary # 4

So the house has been occupying a 100’x100′ parcel since 1925?

So the point of beginning tie is off 200′ but we know where the 100’x100′ parcel is actually located in the physical world (not some Lawyer’s pipe dream of a plowed field)?

I would say there’s a pretty good chance the Deed is for the occupied 100’x100′ parcel.

There’s no encroachment or AP problem just a latent ambiguity as to the real location of the parcel.

But the Attorneys probably won’t listen to me; I’m just a Field Surveyor.

[Richard Schaut]

Continuing DIRT Board Commentary # 4

You are almost as bad as nearly normal was.

RS