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They do have that ability due to the statute and for other reasons within the statutes telling them what they can and cannot do. I’m sure they don’t turn away very many, but it does happen.
Although it did not apply in the case, as it was a QCD, but the title companies have started to refuse to issue title insurance for unsurveyed tracts in rural areas.
@holy-cow I’d like to hear how in particular a Recorder can demand a survey as an attachment. That’s beyond their purview. The idea that a QCD is less recordable than a Warranty Deed is incorrect at the courthouse. Whether or not a title company is willing to insure has nothing to do with whether a Deed is recordable or not, they are not signatories unless in possession.
Around here I’d say 90% of Deeds are QCDs because the Grantor wants to minimize exposure and the Grantee is willing to accept the risk because he’s covered by a Title Insurance policy. If a Title Company refuses to insure that’s a red flag but will not prevent Deed recordation, do so at your own risk.
It wasn’t that it was a QCD, it was the description that was the problem. The recorder does not require a survey, per se. But the description must be prepared by an attorney or a surveyor. I did not look at the deed, but the fellow told me separately that it was created by the seller, which is a definite no-no. What I understood later from the Register of Deeds was that the description was so poor it was effectively worthless. I’m not surprised at all.
Here, as a general rule, the title companies will not insure a QCD for something like 20 years after it is written. I’m not sure why. They also will not insure tracts sold at a tax sale for at least 12 months following the receipt of the deed from the county making the sale unless they also have a deed (or some release) from the party who lost it to the tax sale.
I confused you in my first post. What I meant to say was that the description needed to be prepared by a surveyor (or an attorney foolish enough to write one without benefit of a survey). This fellow’s banker is also an attorney, so he might just get him to do it.
We have a few counties that effectively dictate surveys to create any tract that is smaller than a common quarter-quarter of a section. If another split is desired then the entire quarter-quarter (or whatever it is) must be converted to being a legal subdivision with a Block 1 and Lots 1,2, etc. for all future actions. This requires far too many signatures and oversight to be reasonable. Fortunately, I very rarely work in such counties with their asinine procedures. It can easily take two months minimum to convey a tract that could be handled in a few days in most counties.
In this case the whole thing is a mess because owner-written deeds used to be accepted. The key owner of the west half of the northeast quarter (which had never been surveyed at any time) gave one son a 10-acre tract (not exactly 10 BTW) bounded on the east by the quarter-quarter line. A couple of jogs were put in the west line based on some distances crudely stepped off through timber area. This tract was never surveyed. Later he whipped up another description to attach an oddly-shaped tract off the southeast corner of the son’s 10-acre tract. That description has its own fuzziness. The son sold that tract to the fellow in the courthouse several years ago and a house was built. The key owner is long since dead and his son is the one writing a screwed up description to sell a chunk of the original 10 acres to the guy I was chatting with who has the odd tract behind. The key owner at some time deeded the remainder of the half quarter to a daughter. Daughter and son are both quite selfish types and are not friendly towards each other today. The daughter wants to know where the alleged divide lines are between her property and that of her brother and the poor other fellow. The other fellow wants to know what he supposedly owns plus what he is trying to acquire. Both feel the son should be the one paying for a survey. It is highly apparent that will never happen while he is alive. The son has a worthless son of his own who has been leeching off of him for years so he has no extra money for a survey even if he wanted one. Only four of five of the eight perimeter section corners have ever been blessed by a surveyor since the 1865 mythological GLO work. The center corner may be a fence post or it may be a calculated position or it may be something found in the vicinity of those first two choices of unknown heritage. Much of the area where the boundary lines of the three (actually four) tracts need to be located is scrubby brush so dense GPS is not going to penetrate and chains saws will be needed to clear any kind of a series of paths for total station work and none of the three owners has any desire to harm a tree.
Almost forgot to mention that the guy I saw at the courthouse has no written easement to even get to the tract with his house on it. His original tract is smaller than what the county dictates as a minimum when considering home sewage waste system installation so eventually the county sanitarian will discover his house and probably demand he put in a very expensive new system. I’m not certain if he is even connected to the rural water district main line. He must have electric but it wouldn’t surprise me if it was tied to the house owned by the son mentioned above.
Never heard of any Register of Deeds, County Clerk or another office that records deeds to have the power to refuse to record what a person brings in as long as they can pay the recording fees.
They have no power to decide if the recording is legitimate or not and can not make any such decision.
The only time I’ve known of them refusing to record something was when the document was in such poor quality that it was impossible to obtain a useable copy or scan.
I believe that the Register of Deeds does not have that right.
In Massachusetts, plans can be refused. In addition to the regsiters’ of deeds formatting and legibility requirements, Massachusetts General Laws Chapter 41 Section 81X says [I paraphrase] that no register of deeds shall record any plan showing a division of land in a city/town in which the state’s subdivision control law is in effect unless the city’s/town’s planning board has endorsed the plan, or the planning board has endorsed it as not requiring approval (yes, the planning board approves that approval is not required…), or the city’s/town’s clerk has certified that the planning board has dragged its heels for too long.
Section 81X also prohibits registers from recording notices of modification, amendment, or rescission of a subdivision plan without planning board involvement.
However, the registers shall accept for recording any plan that a registered land surveyor has certified as showing only already-existing boundary lines and already-existing streets or ways.
@rover83 – i’m not sure about Case Law, but it has been the Standard of Practice as long as I can remember. I do know that it is discouraged by Gary Kent with regards to the ALTA/NSPS Standards.
If a description can be placed on the ground I see no need to prepare a new description… Monuments relied upon by land owners do not alter the description.
Learned more on this today. The description made no reference to the section, township and range involved nor did it mention it being in a specific quarter of the section, let alone being in the west half of said northeast quarter. It could have been most anywhere.
In Massachusetts, plans can be refused. In addition to the regsiters’ of deeds formatting and legibility requirements, Massachusetts General Laws Chapter 41 Section 81X says [I paraphrase] that no register of deeds shall record any plan showing a division of land in a city/town in which the state’s subdivision control law is in effect unless the city’s/town’s planning board has endorsed the plan, or the planning board has endorsed it as not requiring approval (yes, the planning board approves acknowledges that approval is not required…), or the city’s/town’s clerk has certified that the planning board has dragged its heels for too long.
Fixed it for you.
@holy-cow Then clearly the Recorder can refuse to record based on an inability to locate the property (see above). Much different than claiming the Deed requires a survey to record.
@a-harris – In Arizona the Recorder is required to record anything handed them as long as it meets the statutes regarding physical size, type height, etc. Drawings have to have north arrow, graphical scale and surveyors signature and seal. There is a requirement that the property owner’s name also be there, which has only recently been enforced. The first time they told me that it had to be there I pointed out that my client was the buyer, and that the owner would change tomorrow. They didn’t care…
The clerks in our Recorder’s office could no more read a description than fly. I once complained about something and the Recorder spoke with me and said “Jim, I can’t afford to hire people who can think.” Kand of worried me…
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