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@bill93 The unity of title question is a red herring. The description in the will was a photocopy of the 78 description. There is no reasonable way to argue they weren’t describing the same property. We aren’t looking at this from an AP or acquiescence viewpoint. The question is, what are the various expressions of intent. The description and construction/occupation are the biggies. You may glean more from the will or other authoritative writings of the deceased.
Something to think about is maybe the brother is not that bad of a guy. Could be he’s in financial straits and is only asking for a few grand to cooperate with no litigation and clean up the mess, and therefore pay his rent for the next few months. Maybe the youngest sister is due some karma.
From a purely min-max analysis paying the brother a few grand is a winner. Compared to litigation that’s cheap. Most of the previous posts concern conjecture as to how the courts may rule. That can run in to the tens of thousands. I’ve been personally involved in a few tentative lawsuits where I paid a good lawyer (+-$500) for a consult to opine on my case and they said I’m dead right and am likely to prevail in court, but it’s a financially loser situation odds wise. Thank you sir for being honest.
Concerning interfamilial property transfers, they’re the worst, except in probate. They often don’t involve a land surveyor, Title Company or even an escrow agent. Ghost deeds that are not recorded, homemade deeds that only references the Assessor’s Map, no access rights, some deeds over 50 years old. Yuk.
This case for the surveyor is a slam dunk. Locate the original partition based on the record, and locate the actual as built features. Submit your opinion and let the parties agree or proceed to litigation. Estimate about 5 grand for your survey and both parties may come to terms without survey. A win-win for all.
There is an exception to subdivision regulations for mortgages in both states I work in. They approach it differently, but once foreclosed on a new tract is created. Haven’t seen one of mine become a tract yet. I’ve managed to punt the last two by telling them how to describe it themselves (W1/2 Lot 1, Section x) and staying out of it.
The banks don’t wish to lend on the minimum acreages and want a smaller acreage described. Statutes allow it.
Brother wants to made whole, hence the offer for a 5 acre swap. The daughter having received the bulk of the cash estate pays for the survey, the lawyers, and the filing fees. Or she can divy up the brother’s legal lawyer and filing fees, 11.11% to 88.89%. The second brother is not a party to this event.
BTW, this does not go to the Planning Board. The Will in front of a Probate Judge is the document that subdivides the land. A Planning Board is just a different Court that subdivides other lands.
Paul in PA
This is how those true crime episodes start…
I had this almost exact situation a few years ago but the adjoiner wasn??t a relative. I contacted the adjoiner and knew he was just going to swap properties to make the house fit the property. He didn??t even care about the measurements a long as the acreage was the same. The owner of the house paid our bills and recording fees etc. Why can??t the OP??s clients just do that and get along?
Seems risky for a bank to do this sort of thing. I can imagine someone obtaining a mortgage for a described parcel, then putting the house up and occupying elsewhere, like the OP’s situation. Then defaulting, and the bank is left with foreclosing on the 5 acres of vacant land.
This is one of the problems with the mortgage exceptions. I did a 5 acre exempted property survey for a cousin. While I was doing it I questioned where they wanted to put the house, it didn’t seem like a good place, moving it a bit down the hill made more sense to me.
Anyway they told me the builder liked the location so I went ahead and laid out the tract, I stopped by just for a visit and noticed the house awfully close to the boundary, sure enough it got moved from where it was staked down the hill, they told me the builder said this was better………….
The big barn was clearly out of the tract, so I came out later and adjusted everything, the county was kind enough to allow it to happen, now the barn, house and cistern are enclosed inside the new tract, but this could easily have been a mess.
Usually the mortgage tract is done before construction, if it’s moved like my cousin and the OP did……………
I disagree with the premise of the thread that title and boundary disagree.
Title is what (5 acres)
Boundary is where the 5 acres is located.
I agree that the boundary of the 5 acres is where it was established and occupied by the owners consent.
The description should be corrected in accordance with the consensual agreement.
Actually there is more to title than 5 acres. Title is evidence of ownership > a bundle of rights > an unwritten concept. A house built on a 5 acre enclosure is a piece of title evidence. The written deed belonging to the people who occupy the enclosure is another piece of title evidence. A deed may support title however it is only one piece. A surveyors duty is to survey the limits of the owner’s bundle of rights. No one said it was easy.
Thus the state commissions the surveyor to offer a professional opinion based on the bundle of evidence. It’s the owner’s first step in legal defense of the limits of their bundle of rights. Quite often it’s also the only step taken. When it’s not it goes to a higher legal authority for resolution.
Really great thread! Thanks for posting Paden.
These are some of our best threads. They force us to really think about whether or not we are practicing correctly or simply repeating what we have done in the past.
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