JBS
I agree with all that too, but until that happens, like today, what should surveyors do in non-recording jurisdictions?
> 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
OK. But, boundary evidence is currently found in title records. Most of it is perfectly adequate. Some of it could use a little help.
Also, in the states I'm licensed in there are only deed books of one form or another and plat books. No Record of Survey documents. I assume that is what you are referring to by Title Records vs. Survey Records.
Stephen
JBS
> I agree with all that too, but until that happens, like today, what should surveyors do in non-recording jurisdictions?
Lobby for one. Insist in having one. Create their own if no one will listen.
Basically, take action.
The only other alternative that we have available in our statutes (as well as many others), is to have the landowners file an "owners affidavit" which has a copy of the survey attached. You might be extremely limited on size of the sheets, but you can always use more of them. Affidavits, like retracement surveys, are a non-binding way for evidence to be placed in the title record without directly affecting the title record. A little complex, but it would work. I've seen quite a few surveyor affidavits in our title records that were filed prior to the beginning of our survey filing act (which only started in April of 1987). We started it then, simply because there wasn't one. (We being a small group of caring land surveyors). Yes, we had flak jackets on at the time.
JBS
> Great post Mr. Stahl. And good thread. This is why I keep coming back.
>
> 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
Tom,
I used to prepare "as-surveyed" descriptions (you call them "property descriptions") all the time. The problem I discovered is that it doesn't take long at all for an attorney, title officer or real estate agent to copy that "new" description onto a deed or contract and, Voila!, you've got a new description mucking up the title records. The recorder freaks out because the round peg no longer fits in the square hole on the map; the title company freaks out because "they can't insure 100.07' when the deed is only 100'; and the GIS map shows all sorts of "boundary problems" when you zoom in really close!
I found that by not providing them at all, nobody gets hurt... Kinda like scissors. In the hands of a pro, amazing things could be accomplished. Hand them to an idiot and they'll run with them every time!
;o)
JBS
The primary reason to correct inaccurate record descriptions is that an inaccurate description is a title defect and has been recognized as such for many years by the title insurance industry.
There are third parites, (mostly lenders), who rely on the record description while the legal system recognizes the owners right to establish legal boundaries that may supercede the record. In these cases, a surveyor who fails to notify his client that a correction is necessary or fails to assist the owner to draft and record such a correction instrument may be guilty of facilitating a fraudulent land transaction.
Go back to the old board and check my "Appraisal of title, Part 1" and "Appraisal Part 2" and "Appraisal Part 3" and you will find a list of 19 title defects that will not be found by an attorneys search of the record; 3 of these title defects are cause by inaccurate record descriptions.
As long as the title industry refers to inaccurate record descriptions as a title defect, the correction must be entered into the chain of title.
Your state laws will contain the instructions you must follow in order to create the correction instrument and ignorance of the law is no excuse.
Richard Schaut
> The primary reason to correct inaccurate record descriptions is that an inaccurate description is a title defect and has been recognized as such for many years by the title insurance industry.
>
I would strongly disagree, Richard. A description is sufficient when it identifies the subject property against any other. The description is never intended to provide every stitch of evidence necessary to determine the locations of its boundaries. "Title" is "ownership." I can sell you the Brooklyn Bridge and you get nothing (no title) even though its location can be precisely defined. Ownership and location are two entirely different things with entirely different bodies of law supporting each.
> There are third parites, (mostly lenders), who rely on the record description while the legal system recognizes the owners right to establish legal boundaries that may supercede the record. In these cases, a surveyor who fails to notify his client that a correction is necessary or fails to assist the owner to draft and record such a correction instrument may be guilty of facilitating a fraudulent land transaction.
>
Again, you are muddling the "title" with the "location." Just because the measurements are different that the record, doesn't make the record "inaccurate," "unusable" or "fraudulent."
>
> Go back to the old board and check my "Appraisal of title, Part 1" and "Appraisal Part 2" and "Appraisal Part 3" and you will find a list of 19 title defects that will not be found by an attorneys search of the record; 3 of these title defects are cause by inaccurate record descriptions.
>
No thanks. Pained me to read it the first time.
>
> As long as the title industry refers to inaccurate record descriptions as a title defect, the correction must be entered into the chain of title.
>
One thing you've never been able to do, Richard, is to tell us what law gives any landowner or surveyor a way to "enter a correction into the chain of title." I'd really like to see that law. I've never found one, other than reformation (correction deed) or boundary agreement.
>
> Your state laws will contain the instructions you must follow in order to create the correction instrument and ignorance of the law is no excuse.
>
Yes. My state has such laws for "correction" documents. They are extremely limited in their scope. They're pretty much limited to the original parties and the original document. A few exceptions exist. In fact, I just completed a "corrected" subdivision plat. Has anyone out there ever seen one of those? Not an "amended" plat. A "corrected" plat which acts just like a "corrected" conveyance deed. In all my years of surveying, there have only been a few times when filing a "correction" document was even possible. Your advice to "know your state law on correction instruments" is hardly ever applicable, but is good advice when it is.
>
JBS
JB,
I agree with you. I expressed the same concern in the earlier thread (that your survey notes description can be taken and run with by another person in a new deed). That is the problem (as I see it).
I really like the way you expressed the dilemma; and it is a dilemma. The points others have made that you are "updating" the description based on what is in the field today has some validity. However, those are not the original conveying calls, and your survey is only your opinion as to where the original deed or survey called to.
Okay, I'll shut up now...before I stick my foot further into my mouth.
Tom
Wattles
Let’s see what old Gurdon Wattles had to say on this very subject:
“The apparent advantage of metes and bounds, lies in the setting out of dimensions of the courses, and recital of monuments, giving the owner and others an idea of size, and apparent fixity of position.
The rules of interpretation and precedence of calls, showing of discrepancy or error, physical destruction or movement of monuments, all combine to discredit much of the work involved in this form of description. As a general rule, an area may be more readily and specifically described by any of several forms other than true metes and bounds and with less liability of error or inconsistency.
…it is evident that a metes and bounds carrying dimensions together with boundary recitals is liable to misrepresentation if dimensions disagree with a proper relocation of boundary land.
A fully dimensioned description provides a great temptation to a surveyor or owner to ignore the facts of title and adjoiners, thereby saving a little time, but often creating a lawsuit.”
Wattles
> Let’s see what old Gurdon Wattles had to say on this very subject:
>
Thanks, Bruce. That Wattles was pretty sharp for a "title" guy...;o)
Unfortunately, we're living the society which he warned us about. Metes and bounds descriptions (without bounds or calls to monuments) is the norm around here. A real PITA.
JBS
Wattles
There is something amiss here with the logic somewhere.
On the one hand we are to eschew the magic, divine numbers of the record description and put the corners and lines where the original monuments were set or would have been set, follow real property law principles, and even take into account unwritten rights and show the people what they really own. That is why we exist.
And yet to write a survey description which may or may not be used for describing future conveyances is an incorrect action. Oh, I see it completely dishonors the magic and devine numbers of the record description. The record description must be perpetuated. That is why we exist.
Stephen
Wattles
JBS,
Thank you for taking the time to respond. You seem to have delivered exactly what I asked for, and you know in what high esteem I hold your experience and your opinions.
I wish I had time to more fully participate in this discussion than I have.
I will have to cogitate and study on this some more.
Thank you again, and thanks to everyone else.
Stephen
Wattles
>On the one hand we are to eschew the magic, divine numbers of the record description and put the corners and lines where the original monuments were set or would have been set, follow real property law principles, and even take into account unwritten rights and show the people what they really own. That is why we exist.
>And yet to write a survey description which may or may not be used for describing future conveyances is an incorrect action. Oh, I see it completely dishonors the magic and devine numbers of the record description. The record description must be perpetuated. That is why we exist.
"Do I contradict myself? Very well, then I contradict myself, I am large, I contain multitudes."
Perhaps Whitman would have made a better surveyor than Thoreau 😉
Duane: Why Not?
> 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.
It seems to me the most important element is whether the original description is actually objectively locatable by itself or not. If the lot is in a recently platted subdivision, and substantially all of the monuments necessary to determine the corners of the lot with certainty are in place, sure, a reference to the plat would ordinarily be perfectly sufficient.
On the other hand, if the plat is seventy or a hundred years old and it is a major undertaking to reconstruct the original location of the lot upon the ground as shown upon that plat, why would anyone decline to modernize the description of the lot in a way that both connects its location with the written title and isn't subject to future uncertainty? It only works in those states where new maps of the parcel are recorded that provide in effect a new metes and bounds description.
In those states, sure, land may be conveyed using some ancient description referring to no-longer-existing monuments connected by grossly erroneous calls for course and distance and no one need wonder at the stupidity of it.
Wattles
YUP, metes without bounds and aliquot parts without controlling corners that can't be found (or declared lost when obliterated) make it interesting. Add to that those that won't accept anything but a fictional perfect one square mile record (and that's how you must survey regardless of the gaps and overlaps created) and it's really gets interesting. Then the counties start to claim title to the fictional gaps because, well nobody owns it or paid the taxes, and gosh, welcome to happy valley.
If it appears that I have a bad attitude it's because I do! The solution, well, make everyone quit-claim it in a boundary adjustment. Yup that will make it insurable if nothing else. No more title problems, you just get what the recorders accept from the mess of quit-claims on their plat maps.
LRDay
The problems that you describe are real and they can be attributed to those who actually believe that ONLY Chapter 3 of the Manual can be used to subdivide sections.
Thus gaps and overlaps all over the section.
Somebody has said that surveyors create gaps and overlaps!
Keith
JBS
Ideally, those states that don't require recording would permit it on a voluntary basis. Why shouldn't any citizen be allowed to pay the fee and record any document they chose?
Bill
The recording fee would have to cover somebody's time to catalog the stuff in some way that it isn't just a pile of paper in the corner of the Recorder's Office. Here, when a survey map is filed with the Recorder's Office, the Assessor plots it on their maps (99.9% of the time) so it's easy to know if any surveying has been done in a certain area.
LRDay
Keith,
It goes way beyond surveyors. Title companies, government agencies, general public, public officials. It's a deep seated cultural thing going back to the early Utah settlers. Trying to change it is like trying to use a canoe paddle to steer an aircraft carrier.
Yet the high courts have left us good law, but it's just generally ignored unless a case goes to court. Very few boundary problems out of the whole get a court decision based upon the law.
Between the cost avoidance of hiring a competent surveyor and just a general cultural low opinion of surveyors by the culture, surveyors (at least the ones that know the law) can have very little influence on solving the problems. The culture is too arrogantly ignorant to even present the problems to those that could help. Surveyors as a group can't even agree on what are the problems, let alone propose any valid solution. A cultural state of chaos is the accepted norm.
JBS
> Ideally, those states that don't require recording would permit it on a voluntary basis. Why shouldn't any citizen be allowed to pay the fee and record any document they chose?
Better yet, why should the surveying profession leave anything up to the client? Seems like we're asking for problems. Maybe we're getting the problems we've asked for for years. Reaping the rewards, so to speak...
Just saying...
JBS
> > The primary reason to correct inaccurate record descriptions is that an inaccurate description is a title defect and has been recognized as such for many years by the title insurance industry.
> >
> I would strongly disagree, Richard. A description is sufficient when it identifies the subject property against any other. The description is never intended to provide every stitch of evidence necessary to determine the locations of its boundaries. "Title" is "ownership." I can sell you the Brooklyn Bridge and you get nothing (no title) even though its location can be precisely defined. Ownership and location are two entirely different things with entirely different bodies of law supporting each.
You are missing the fact the we are dealing with US real property law which does not separate ownership from location. In the US, you own what you occupy and control, including the parcels created by acts of the owners as opposed to parcels created by law. (See Black's definition of Alienation.)
>
> > There are third parites, (mostly lenders), who rely on the record description while the legal system recognizes the owners right to establish legal boundaries that may supercede the record. In these cases, a surveyor who fails to notify his client that a correction is necessary or fails to assist the owner to draft and record such a correction instrument may be guilty of facilitating a fraudulent land transaction.
> >
> Again, you are muddling the "title" with the "location." Just because the measurements are different that the record, doesn't make the record "inaccurate," "unusable" or "fraudulent."
When the record does not accurately reflect the location of the property boundaries within the accuracy requirement applicable at the time the documentation for a sale, including the mortgage documentation, is placed on the record; a potential fraudulent situation exists. (Check with Lucas's latest article regarding the 2011 ALTA/ACSM standards.)
> >
> > Go back to the old board and check my "Appraisal of title, Part 1" and "Appraisal Part 2" and "Appraisal Part 3" and you will find a list of 19 title defects that will not be found by an attorneys search of the record; 3 of these title defects are cause by inaccurate record descriptions.
> >
> No thanks. Pained me to read it the first time.
> >
The pain is probably caused because you will have to use your brain instead of regurgitating garbage fed you by the title ins. industry. Remember, the quote is a direct copy from a law school text book, and the list specifically states that the 19 items are title defects that will not be found by an attorneys search of the record.
> > As long as the title industry refers to inaccurate record descriptions as a title defect, the correction must be entered into the chain of title.
> >
> One thing you've never been able to do, Richard, is to tell us what law gives any landowner or surveyor a way to "enter a correction into the chain of title." I'd really like to see that law. I've never found one, other than reformation (correction deed) or boundary agreement.
I would like to inform you that surveying is a profession, not a trade where laws and regulations are as detailed as you apparently need so that you don't have to think too hard. What law tells you that the land owner cannot correct inaccuracies in their property descriptions?
> >
> > Your state laws will contain the instructions you must follow in order to create the correction instrument and ignorance of the law is no excuse.
> >
> Yes. My state has such laws for "correction" documents. They are extremely limited in their scope. They're pretty much limited to the original parties and the original document. A few exceptions exist. In fact, I just completed a "corrected" subdivision plat. Has anyone out there ever seen one of those? Not an "amended" plat. A "corrected" plat which acts just like a "corrected" conveyance deed. In all my years of surveying, there have only been a few times when filing a "correction" document was even possible. Your advice to "know your state law on correction instruments" is hardly ever applicable, but is good advice when it is.
> >
I have already directed you to www.wsls.org for an explanation of Wisc's Assessor's plat law where an assessor or three landowners can petition a court to resurvey an area, which may be an existing plat, to force a correction to each lot in the existing plat as necessary and, the resulting plat will be recorded, thereby changing the description from the lot/block of the old record plat to a lot/block designation to the assessor's plat which is given a specific name. This means that any original lot designation is no longer valid and the new assessor's plat lot/block is the legal description once the assessor's plat is recorded. Simple corrections to a line common to two adjacent lots can be handled with a Certified Survey Map as defined in our statutes and the result is that the two affected lots become lots 1 & 2 of the CSM #xxx, replacing the original lot/block designations. In unplatted lands, the correction document is less complicated but each state has their own unique statutory requirements which is why I refer to the need to know your state laws.
> JBS
You must somehow convince yourself that surveyors in the US operate under a system of land law that is definitely not english law and that surveyors are legal experts, dealing with an aspect of land law unique to our system of private land ownership. As long as the definition of Fee Simple includes the 'unconditional right of disposition', (See Blacks' Law Dict.), surveyors have no authority to 'create' conditions that we require before we recognize that the landowner has exercised their unconditional right.
Richard Schaut
