I still do not understand .....
> You turn in a description, that while factual and that truthfully depicts the actual lot size, shows 50 x 119.5...Client is turned down for building permit.
>
> And yes, I've seen this happen in Lawton. Just one reason.
But not a good one. Woe betide to the subdivider who created lots to the exact minimum square foot. And why would the city be so hard nosed about the number? Builder needed someone to argue significant digits and measurement theory on his behalf.
Stephen
I still do not understand .....
I certainly agree that a city, planners and such, should exercise common sense but sadly that is not always the case.
I frankly think that to convey Lot 1 Block 12 then that is all that is needed in the description but I've always supplied a map that show the record and measured dimensions which are often different than the plat.
I still do not understand .....
I agree with your statement Deral ".... all that is needed to convey...". Let us remember that the primary purpose of a description is to identify the land being conveyed. Nowhere in any law that I know of does it state that it must be completely described to modern standards of accuracy and precision.
But,... since we can, why not go the extra step and provide a description that is more useful to the landowners as well as to the surveyors who will follow us in the future? This has also been argued and discussed many times in regards to providing a metes description for sectional land. NE quarter quarter clearly identifies the parcel being conveyed, but is doesn't describe it to a very meaningful degree.
Again, I don't argue that lot descriptions and aliquot descriptions are inadequate, I am just stating that I don't see the harm of providing a metes description of either. If there is any harm in it, I have yet to have it pointed out to me in any way.
Stephen
I still do not understand .....
I too hate to spend my time preparing a legal that is, in my mind, not necessary.
If your legal will create chaos where there is none, you need to rethink your writing methods and skills.
That village idiot will create and use a very poor legal if one is not prepared by you. Legal descriptions are simple to prepare with many different software packages, just key in the numbers from the plat and print! But you can do the world a favor by creating a good one with all the proper citations, record and measured data, monument calls, etc.
If the client has a lot that is deficient in area because of poor plating or poor staking, then that is what they have, a lot that is deficient in area! Duh!
If a legal was not included in your original contract the ALTA standards can be used to justify an additional fee for that service.
We are here to serve the public. It is high time we learned what they want and need. Our survey customs and personal desires need to conform to what the public wants, not the other way around.
Why Not?
It depends on what you want to do. The M&B description changes the intent. That holiest of considerations.
Lot and Block description intent is almost universally interpreted as an intent to convey lots of equal size (50X200 or whatever) with the other rules for the odd lots. I say almost because in NY the courts will not infer that intent and require the surveyor to look for evidence of contrary intent before proration. In affect, the M&B description changes the intent to that of conveying a certain described area regardless of whether it is later found that there is a shortage or excess in the block. Has nothing to do with senior rights. So, you could wind up with a prorated solution for some of the block and other lots described by M&B not included in that solution.
By your logic, you would rewrite, re-describe an aliquot description
such as NW1/4 SE1/4 Section 21
Duane: Why Not?
A properly crafted M&B description describes what IS.
Intent, the holiest of considerations... ?
We all intend to do things, but just intending to do something does not bring it into reality... use a failed marriage as an example. Most of us did truly intend “to have and to hold, forsaking all others, till death do you part”, but that not quite what happens, is it.
One more time: A properly crafted M&B description is the key, learn to weave the words!
> Hated to have missed this thread today. Going to try to revive it. TTT
>
> This is an item of interest for me. For years, or decades even, I have been told to do it the way this thread is stongly trending. Don't write a metes description for a lot in a platted subdivision. The only trouble is when I ask "why not?". I'm still waiting on someone to articulate a definitive answer.
One caveat before I start here. I have not read anything posted in this thread or the "other" thread. And, I've only read Stephen's post up to this point, not even his entire post. I've only got a couple of quick minutes to respond. So, if I'm saying anything that's already been said without giving credit, this is just me giving my pure, unadulterated take on writing "any" type of metes and bounds description, OK?
I used to wonder why, myself. The reason I wondered, was because I was taught that every survey should have an "as-surveyed" description to reflect the differences between the record and the measured differences. I was also taught to expect that the main reason for "rewriting" the descriptions was because, frankly, they were crap and we now know how to write them better and can calculate closures to three decimal places. It was our job to "fix" the poor descriptions. Well, that's the way I was taught and that's the way I surveyed for most of my career. That's just the "way it was done" and I was never given a good reason why not.
Well, I've found out what that reason is, and it's HUGE. It's a big enough reason that your entire survey can be thrown out of court and completely disregarded. I've seen it happen in several trials now. And, you know what? They're right. Here's why...
There is a simple concept in the law of boundaries and conveyancing (notice those are two different things, not one). The INTENT of the landowners who enter into the EXPRESSED agreement to CREATE a boundary are PRESUMED to use carefully chosen words to describe their INTENT. Those words are their words, no one else's. Once those words are chosen and put to paper in the form of the conveyance document, they are fixed, unalterable and unchangeable, with one exception: the doctrine of REFORMATION. That's where the law allows the two parties, under very tightly constrained circumstances, to recognize that a mutual mistake was made when they discover that the expressed words chosen do not reflect the terms of their original agreement, to open the terms of the document, correct the terms to properly reflect their ORIGINAL agreement, then close the document back up as if the original document contained those corrected terms in the first place (after all, it was their true agreement).
We see these documents fairly frequent in the form of a "CORRECTION" deed. Really, any type of agreement document can be "corrected" by the original parties. The courts do, very limitedly, allow other parties who are in privity to the original agreement (or in close proximity, at least), to make those corrections. Surveyors are clearly not "in privity" nor "proximity" to the original agreement and have NO AUTHORITY to modify, change, alter, or correct the terms of the description. Any attempt made by the surveyor to REFORM the description is ABSOLUTELY NOT ALLOWED by the court. The REFORMATION doctrine doesn't even give that authority to the COURT itself, except in the limited circumstances cited and only when the parties are in a dispute over the terms expressed as not properly reflecting their agreement.
In 20+ years of quite intense research of our laws, I have not found a single exception to the doctrine of REFORMATION nor have I found a single law which allows subsequent landowners to change, correct, alter, or fix the description of their property. If they can't change their own description, what makes surveyor's think they somehow have a "duty" to change it for them? And, when the surveyor "fixes" their description, how does that "altered" description get into the title record? Title companies, landowners, attorney, and who-ever else (sometimes surveyors themselves) will have the owners "quit-claim" the new description to themselves. I've literally seen a judge take one of those quit-claim deeds, review it quizzically, throw it over his shoulder, and watched it float to the floor. A deed requires two parties; a grantor and a grantee. If they don't have it, they're WORTHLESS.
So, the only way I've found in the law that allows the landowners to "fix" their description is, when confronted by an ambiguity, uncertainty, or dispute over their boundary location. They can enter a BOUNDARY AGREEMENT which will settle the matter and will resolve the ambiguity. That agreement does not create a new line (it's not a conveyance), it merely fixes the location of the EXISTING line by removing the doubt of its location. What was before uncertain, is now made certain by their agreement. Their agreement fixes the LOCATION of the EXISTING boundary.
Boundary agreements are made in the form of an affidavit, not a conveyance document. There may be language within the agreement which releases any claim of right on opposite sides of the agreed boundary, but there is no exchange of title as the boundary already defines the extent of their title. They just didn't know where that extent was located prior to the agreement. In fact, if they did know where the boundary was located, the law prohibits them from entering an agreement that places it somewhere they know it's not. If they desire to create a new boundary in a new location, they must do that by the proper conveyance instrument, not by agreement. There must be an exchange of TITLE. Surveyor's know this as an ADJUSTMENT which might be subject to review by a local zoning official to ensure setback and area requirements are maintained while creating the new boundary.
So, that's my "short answer" on "why surveyors should not EVER prepare a NEW description of an EXISTING parcel. It sets them up for FAILURE. The original parties original words should be maintained. Those words are what were relied upon to form their agreement to create the boundary. Those words (even if we'd have chosen better ones) are the words which should be perpetuated. Those words cannot, except in very limited circumstances, be "corrected" by ANYONE other than the original parties (and a few others).
JBS
I still do not understand .....
X2 Well said Holy
A resurvey of the Lot/Block/Subdivision described land shows the situation of current measure and monumentation, there is no need to re-describe the property.
Well, I operate under the presumption that people pay me to resolve ambiguity. After taking all evidence into consideration, it sometimes is helpful to write a description that clarifys the intent per my professional opinion. My clients consider this a valuable service.
Just to clarify, I don't call this "correcting" the description. Sometimes the original description is left in the deed and sometimes not, but I agree it's still the controlling wording and part of the record. And my new wording is also controlling unless it is found otherwise by a higher authority.
I agree 100%. Too bad the Utah Recorders, title industry and legislature is so ignorant to the common law. Utah Supreme Court gets it, plainly writes it in their opinions and just about everyone else ignores it! Go figure, eh!!
Yeah, and I'm showing restraint about who else around here doesn't get it.
Duane: Why Not?
Peter,
Again, it depends on what your intent is.
"One more time: A properly crafted M&B description is the key, learn to weave the words!"
If my client is the developer and they tell me the intent is that all lots are equal and no they don't want to garauntee that a particular lot has exactly 50.000 feet frontage, then lot and block is the description I should write in order to best fulfill that intended conveyance.
If my client is purchasing a lot and I want to make sure they get a certain parcel size that is not later subject to proration, then I'm going to demand a M&B description. If the M&B description comes in under code dimensions, thereby making the lot unbuildable, then my client is not going to purchase that lot.
The key is the proper type of description as well as one properly crafted.
The intent of the parties, determined from objective analysis of their words and actions and the time of conveyance is the only thing that matters. If the evidence shows they did a certain thing, then they are stuck with it, even it's not what they say they intended to do. Unless, they catch it in time for a reformation of the contract.
>.. The original parties original words should be maintained. Those words are what were relied upon to form their agreement to create the boundary. Those words (even if we'd have chosen better ones) are the words which should be perpetuated. Those words cannot, except in very limited circumstances, be "corrected" by ANYONE other than the original parties (and a few others).
> JBS
I agree 100%.
FWIW .. I have been doing ALTA's since 1971 and I have never been asked to write a M/B for a lot of a subdivision OR re write and existing M/B to conform to my survey.
> OK, fine. But if Lot X is shown on the subdivision plat as 85' by 236.4' but is in fact 85.75' by 235.30' then why isn't the world better served by entering these facts into the record?
>
I agree, Stephen. It is important to "enter these fact into the record." The problem is, that "the record" should be a "survey record," not the "title record." Two different records for two different purposes. By placing it in the "survey record," there is no change in the title description. The survey simply depicts the "record" and "measured" values of each line and the theory of location that the surveyor applied to make that determination. You're talking about "evidence of boundary location," not "evidence of title." Boundary evidence should be found in survey records, not title records.
JBS
The surveyor in Wisconsin should heed your advice. Every time a PLSS subdivision is surveyed/resurveyed, it does not need a new description!
Keith
I still do not understand .....
> Scenario Dave-
> You have Lot 1 Block 12 that by plat is 50x120'. Minimum lot size for building in our town is 6000 square feet.
>
> You turn in a description, that while factual and that truthfully depicts the actual lot size, shows 50 x 119.5...Client is turned down for building permit.
>
> And yes, I've seen this happen in Lawton. Just one reason.
This is a great example of a fundamental misunderstanding of boundary law and the intent of landowners when parcels are created.
The fact that you measure the lot to be 119.5' is irrelevant. The lot was created to be 120 feet, therefor, it is 120 feet. That is a basic premise of truth in the law. The same principle is found in the Manual regarding original monuments AND original dimensions. The parcel is what it was created to be, not what you "find" or "measure" it to be. The lot was created using those dimensions, it was intended to have those dimensions, and it was approved with that intent in mind. No surveyor error will change the fact that the lot was intended, created, and approved as a buildable parcel.
If this weren't true and you were asked to stake out a row of 10 lots, each 100'x200', in reality, over half of those lots would be less than the required width. “Lex non cogit ad impossibilia.” * The law never requires impossibilities. * (Co. Litt. 231, b; 1 Bouv. Inst. n. 951; Broom’s Max. 242.)
The appropriate way for the surveyor to report these findings on the survey is to recite the record description (which doesn't change) and to depict the record and measured values on the boundary (so the next surveyor is given the best available evidence to replace the markers).
JBS
JBS
I agree with everything you're saying, but the problem in some jurisdictions is that there doesn't seem to be anywhere to make the survey data available on a map. Where would you suggest that variations from record to surveyed information be deposited besides the private surveyor's own files if they can't record a map and it's inadvisable to revise (or correct) the original description. Not arguing, just asking.
6th PM,
see below.
Stephen
JBS
> I agree with everything you're saying, but the problem in some jurisdictions is that there doesn't seem to be anywhere to make the survey data available on a map. Where would you suggest that variations from record to surveyed information be deposited besides the private surveyor's own files if they can't record a map and it's inadvisable to revise (or correct) the original description. Not arguing, just asking.
Great question, Steve... All I can say is that, if your state doesn't have any laws, rules or regulations (CA probably has too many of them) regarding the public deposit of private surveyor's records, then the reason isn't a failure of the lawmakers. It's a failure of the surveying profession in that jurisdiction. I know, that's a bit harsh [flak jacket on]. But, who cares besides surveyors? We are only hurting ourselves, future generations, and the public in general by not providing for a public repository of our surveys.
I believe the best system is one where the City, County, State, or whatever level of government you want, sets up a record system that is 1) easy to index, 2) inexpensive to maintain, and 3) is inexpensive to file. Hopefully, it's on the highest level possible, as that makes the accumulation of more records spanning more jurisdictions. A state-level surveyor's office is best, in my opinion. At a minimum, can the surveying profession, itself, set up a library for survey filing? Why do we need a law that requires doing what is only right?
Where the records are housed isn't as important as keeping survey records separate from title records. Even if they're both housed in the same office, they should be two different systems. This keeps the recorder from freaking out when the survey evidence changes over time (which it will) and it keeps the title company from "insuring" my opinion about the boundary location (they're supposed to be insuring title, not location, right?). Yes, we end up with "bad" surveys filed right along with the "good," but none of them are binding on the owners anyway.
We do need to keep recording subdivision plats, etc. that provide mechanisms for "creating" boundaries. Those documents are title documents and need to be in the title records. What I'm talking about is "retracement" surveys which just disclose evidence of the boundary locations relied upon by the surveyor to determine existing boundary locations.
By keeping a separate survey record for retracement evidence, then all the evidence of boundary locations gets filed in a single public repository and it will perpetuate the evidence relied upon by surveyors to determine boundary locations, helping to lessen the liability for each successive surveyor. It will also increase the certainty and stability of the boundary locations.
As it should be...
JBS
P.S. Just to clarify, I wouldn't say that it's "inadvisable to revise (or correct) the original description." I'd say that it's unlawful.
Great post Mr. Stahl. And good thread. This is why I keep coming back.
My plat or report, as I see it, is to show all supporting and conflicting evidence and show how I came up with the boundary I am showing. I respect the original calls and try to report what evidence I find to support my determination of the boundary I am surveying. If I have a record call of 235' and I measure 235.9, I might consider that "supporting" evidence of where I find the property line to be. I am saying 235 record and 235.9 as measured. It says I found the evidence I found, including the measurement I made, to help me find the original deeded line.
The deed shows what was conveyed. My survey plat and/or property description shows where I find the corners of that deed to be. I am not reestablishing a deed, I am retracing an existing boundary of record. My "property description" is not a deed description, it is (as some put it) my survey notes. Colorado law references them as 'property descriptions'.
Tom
