1.) Its a family transaction. ie, not much money, usually
2.) Its a long standing corner, and they all agree.
3.) The WRITTEN title, does not match the physical title.
Advise the folks that they should revise the existing title, and then survey off whatever they want.
Problem solved. YOU found the problem. YOU are the devise to fix it. Fix it.
And, if live is better for you, Dear Henry:
Listen to Liza
Nate
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BTW, I'd be willing to wager Uncle Glenn set that pin on his own sometime after the original 2.00 acres was conveyed and told Mary "who is quite old and doesn't remember". She may have taken his word for it and told her son that's where the property corner is. I've had many instances, especially ones involving family members, of their memories not matching the recorded lot lines on the plans of record. It's usually fine when the parcels stay in the family, but once one is sold to an outsider, all hell breaks loose.
Maybe in my state plans of record hold more weight as they are means of evidence and referenced on newer recorded survey plans, otherwise what's the purpose of having a surveyor, or recording plans.
I'd also wager the town tax maps reflect the 2.00 acres and Mary has been paying taxes on 2.00 acres since 1999.
That being said, this could be a case of adverse possession if the other criteria are met.?ÿ
@mark-o Intent is the sum of what was done. That includes the deed, plat, and subsequent actions of the owners. Monuments trump direction, distance, and area in every jurisdiction I'm familiar with.
I've never worked in your State so I'll defer to you on how things work there.
If you do have them revise their deed, make sure there are no other conflict of interests which may be affected such as the possible existing lender mentioned, underground structures like sewerfields, utilities, wells, ingress/egress, or county issues.?ÿ?ÿ
@mark-o Intent is the sum of what was done. That includes the deed, plat, and subsequent actions of the owners. Monuments trump direction, distance, and area in every jurisdiction I'm familiar with.
I've never worked in your State so I'll defer to you on how things work there.
It depends upon what the intent was. If it was to convey the 2.00 acres of land AND the 1/2" rebar, the surveyor should have done so on the plan. Either way, even if there was a written agreement, signed by both parties after the fact, the plan would be upheld in land court https://en.wikipedia.org/wiki/Massachusetts_Land_Court . Maybe because a 2 acre parcel in this neck of the suburban sprawl can be worth upwards of $1m. You can't just create your own lot lines because of convenience and ignore zoning bylaws.
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Super interesting conversation, I keep flipping back and forth.
Not that I know anything, but I'd say the rebar found is unreliable if it can't be identified as an original monument from a recorded call.
It seems the land owners are not really in "agreement" if you say that informing them of the 1/3 acre change will be met with resistance.?ÿ Occupation may convince them to acquiescence or an adverse possession may be ruled. but that'd be for a judge to decide after looking at raw facts and documents.?ÿ The facts will come from you and that's where you need to be ready to defend them with as much leverage as possible.?ÿ
Getting them to sign an affidavit without knowing that their acreages change seems impossible unless it were written without clearly stating so, which would likely become a legal can of worms itself.
It would be interesting, and maybe very wise as this may end up with your firm being deposed, to collect deeds from all surrounding properties and verify the positional accuracy of each of those parcels as completely as possible.?ÿ I know, more work - but it seems it may give your firm leverage in their conclusion to set a new pin 50' from the one pointed at, which is what I think is the right decision - well, unless I keep reading this thread, then I might just stand out there mumbling, "yeah, but no, but yeah, but no, but yeah...."
Oh, and I think the story of a PLS telling his field tech to split the difference between the building and set a monument (!) is appalling and the lesson learned there should have been 1) recheck the numbers, go back a few more conveyances, check against surrounding property info and if it still lands in a living room, 2) distance yourself as far as possible from that 'boss', tell both homeowners of the sequence of events as you leave the company and possibly shoot an email to the board.?ÿ That's absolutely going to cause a legal shitstorm as soon as one of those guys moves or dies.
both are adamant the they sold to/bought to that pin.
Since the above is true, that pin is the corner. But why do you insist there isn't 2 acres when the North corner can not be found? Was it/could it be placed further west so that there are 2 acres for Ms. Mary.
I'm confused by the others saying that pin is not the corner when the parties involved in the transaction are both adamant they bought and sold in reference to that pin.
Has there ever been a case where a judge ruled that the agreed on corner for the transaction really isn't the corner? Seems rather absurd if so.
@lurker The way I read it, there's conflicting evidence (as always).?ÿ They found 3 of 4 monuments that agree with the deed and plat.?ÿ They found one that doesn't (1/3 of an acre out of 2 acre, 50 feet out of position on nominal 400' X 400' or whatever), but that a couple people pointed to as marking that corner. Also, the same people didn't know where the other corners were.
So, under the theory that the people testifying are correct, then I suppose one rebar is held and the other 3 are wrong and need to be reset??ÿ If you are adamant that the one is correct, why would you not then move the other 3?
Yes, courts regularly rule the deed line is not where the parties testify it to be.?ÿ The property line may or may not be where the deed line of record is. But merely surveying someone out of title is not really the best procedure to try to implement.?ÿ
There are many cases I would say yeah, hold that rebar; but the elements don't support that in this fact pattern IMHO.
At best, there's reliance on a mistakenly placed monument.?ÿ Possibly that means the property line is no longer where the deed line is.?ÿ Either the ground or the record needs to be corrected.
@mark-o and in MAss you are probably spot on. Georgia has no land court and a different system of title. The majority of States recognize the right of owners to resolve ambiguities. This case meets the criteria everywhere I work.
At this point in time, I don??t see this as a ??surveying problem? (yet), and my subsequent comments should reflect that.
I??m struggling to get anywhere close to your conclusion, based on your statements. If I misunderstand the facts, I would appreciate them corrected, and I will fall on my sword.
Or don??t.
Because it doesn??t really matter, this has become quite tiresome, and I will agree to disagree. Ultimately, you and your other LS will have the last word any way.
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We couldn't find the 1999 corner on the road (south end of common line) at the computed position. "Uncle Glenn" took us straight to a 1/2" rebar at the base of a large oak. It was 50' from our computed position based on other irons found. So you were shown some random rebar, with no pedigree, history, or consistency with the Deed or Survey Plat.
So we went and asked Mrs. Mary. Her adult son took us straight to the same rebar. Did you ask Mrs. Mary, or did you ask the son? Because those are two completely different people, and your "testimony" did not come from the original grantee. While Glen may believe that to be the corner, Mary has not weighed in herself. The Son's testimony may reflect his belief, but is hearsay as to Mary.
So we located all of Mrs. Mary's corners, all of Uncle Glen's corners on the parent tract to prove/disprove the corner in question. At best, you may have located one-half (2 of 4?) of Mary's corners. In a previous statement you said you "couldn't find the 1999 corner on the road (south end of the common line) at the computed position." But, in trying to determine the common line, you've accepted a single 1/2" rebar, with no pedigree that is 50' away from a position derived from every other corner in the original survey that "fit"?
On the North end of the common line, neither land owner had a clue where the corner was. There are no lines of possession on the line in question but there are areas where its clear who uses what. These two sentences contradict one another, and your "conclusion" about "lines of possession" completely contradicts itself.
The surveyor that surveyed Mrs. Mary's property is deceased but I've followed his work many times with no problems. We can put the line where Mrs. Mary's plat says it should go but both are adamant the they sold to/bought to that pin. No, Glen & Mary's Son "think" that random 1/2" rebar may be one their corners. Again, not Mary, and no historical connection to the original survey.
Uncle Glenn and Mrs. Mary are willing to sign affidavits stating that the iron in question has been relied upon as the corner since 1999. So far as we know, your staff have only spoken with Glen and Mary's Son. At what point did Mary actually testify on the subject, that you have not told us about?
I just don't know if that will happen when one of them realizes that their acreage will be short (by about a third of an acre) due to the difference. This statement right here is proof positive that one or both of them may not be aware of an error, if there is an error. And you're not sure what is correct either.
I would call it reliance on a pin set in gross error. You can call it whatever you want, but this situation is not gender fluid.
Can land owners acquiesce to it? We might find out. Thoughts?
Mrs. Mary's deed refers to the 1999 plat. We didn't find anything at the computed position... Not a stitch of flagging, not a cut limb, nothing
I left that part vague on purpose. There is currently no dispute since they both agree that the rebar marks their common corner. There will be if we put the deed line on the ground. The problem is that you are ??assuming? there is no dispute because you ??assume? both parties have all of the facts and full knowledge of the current situation (which they don??t, based upon your own admission), and have subsequently agreed to a different circumstance.
Fundamentally, there cannot be a dispute if both parties are unaware of the full facts of the situation, and a potential adversarial claim/outcome related to the omission of those damning fact(s). Omission of facts is lying, no matter which way you try and slice it. And now you're possibly within the realm of Board Sanction.
I didn't say which party would be favored because it doesn't affect the answer to my question. You missed the point of the "favored" position remark. If all the historical and field evidence is harmonious, then the parties are at equity. You are already aware of a discrepancy and are fearful of the outcome/repercussions if/when both parties learn the truth.
Yes, in Georgia many times the deed refers to the recorded plat and makes it part of the description. Glenn wants to convey land to his niece that adjoins Mary. So we have to determine her line to know where Bailey's will begin.
Our current theory is that Mary or someone, may have had it surveyed and for some reason revised the plat and the pins didn't get "revised" or the wrong one used in the description. You have not presented any evidence to support this claim, despite complete and utter reliance on a fabrication that you seem to be hanging your hat on.
A peek at the 1999 surveyor's records didn't help either way. How can that be possible? The original surveyor??s records will either support the plat, or show an inconsistency with the plat. If there truly was "didn't help either way", then the original Survey Plat is sound.
?ÿAnd Mary is quite old and doesn't remember anything like that. Is it Mary that doesn't remember, or is it Mary's Son? Because you have a habit of using "Mary/Son" interchangeably as is convenient.
Yes, it closes mathematically and the area is what it is supposed to be. Every cited instance of the Survey Plat(s) appears to indicate that the original surveying is good, except for a missing corner or two?
The monument in question is an every day average 1/2" rebar as described on the 1999 survey. For all we know, is some random rebar, with no history, pedigree, or consistency with the Deed or Survey Plat. What you fail to clarify is that THIS 1/2" rebar is NOT one of the corners of the Survey Plat, it is not on the Plat Line, nor at the correct distance. Not every 1/2" rebar in existence is a valid corner to the Survey Plat, or parol evidence to the contrary.
There are no fences or hedgerows as possession lines. There's a goat pen belonging to one and a chicken house to the other. How do you know these are not encroachments? (That??s a legal determination, please don??t answer.)
I'm not the lead on this one, but two landowners in agreement trumps a surveyor's math in the school I went to.
One of my first crew chief experiences taught a pretty good lesson. In a rough area of the county I had found a couple good corners and using my shiny HP41, computed the others needed. One computed corner happened to be in someone's living room. So I called my boss/mentor. He said to sit tight and do not set anything. He came and talked to the property owners. He told me to bring my iron to set. Then he instructed me to drive it midway between the houses. "But Mr. Rucker, the math...". He said " OK, go drive it in the living room and start a feud where one doesn't exist. I don't really care if the math is happy or not as long as the neighbors are happy." I shut up, and drove the iron as instructed. And later apologized to my mentor. Lesson received and understood. This anecdotal story is far from being ??on point? with the current facts you have tendered for consideration. The only lesson that could be learned from this allegory is that you knew how to follow instructions, because setting an iron ??half-way between two houses? is not ??surveying?, and lacking any other rationale, is exactly the kind of contemptuous and insolent behavior plaguing the surveying profession to this day.
The current record indicates: You were shown some random rebar, with no pedigree, history, or consistency with the Deed or Survey Plat, and you/staff find it to be compelling evidence. You claim you asked Mary about the random rebar, but her Son provided testimony on her behalf in the form of hearsay. At best, you may have definitively located one-half (2 of 4?) of Mary's corners, while every cited instance of the Survey Plat(s) appears to indicate that the survey is good, except for (two) missing corners? You claim neither landowner had a clue where the corner at the north end of the common line was, and there are no lines of possession, yet your staff are able to conclude where lines of ownership exist, based upon the location of some potentially encroaching ??livestock structures?. You openly admit, ??I just don't know if that will happen when one of them realizes that their acreage will be short (by about a third of an acre) due to the difference?, but on the other hand, vehemently defend the notion that both parties are fully aware of all of the fact and circumstance surrounding their boundaries by agreeing to the errant 1/2" rebar, which may affect 3rd party interests, encumbrances, easements, etc.
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As they say on Reddit:?ÿ Roast Me.
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This is the exact opposite of a random rebar with no pedigree. The rebar mathes the corners set and called for in the survey and "both are adamant the they sold to/bought to that pin"?ÿ?ÿ
Who subdivides a lot without tieing it to at least one corner of the parent tract???
This is an excellent reminder of how different things are between our practice areas.
I'm researching a boundary in the coastal plains of NC that probably was never officially deeded to the Board of Education.?ÿ There's one sentence in a 1912 deed that describes it as one acre given to the school.?ÿ It's more likely 2.5 acres.
Pedigree of monuments, plats, deeds that close within 100', what a luxury.?ÿ Then again, the absence of these things forces a person to do their own deed research and get creative with it (transpose numbers, pull wills, search mineral and timber records etc.) and above all place the actions of humans above mathematical ideals.
I've dealt with similar scenarios as the OP.?ÿ I prefer to meet with each owner separately and explain the situation with a sketch labeling the recalculated area and a list of possible outcomes or consequences such as zoning issues and decreased value.?ÿ I'll refer them to a realtor for the latter assessment.?ÿ
When dealing with the elderly, I insist on having one of their younger relatives or friends present.?ÿ I would tell both parties that I cannot predict what a judge will rule but my best guess (a word I'll emphasize) is that they'd hold the agreed to rebar.?ÿ?ÿ
This is the exact opposite of a random rebar with no pedigree. The rebar mathes the corners set and called for in the survey and "both are adamant the they sold to/bought to that pin"?ÿ?ÿ
I think this is an agreeable position, but there was also mention of a hesitancy to reveal that that rebar will change the occupied size of their lots by 1/3 acre with a fear that it may cause one to owner to inquire further.?ÿ I may be wrong but I think if they are truly agreeable to that corner, there would be no disagreement to the errant corner and that it should be clearly shown as such (record vs measured) on the new plat as deterring from the deed.?ÿ To not do so would be opaque and would likely cause worse problems down the road when one transfers their interest - and would look pretty poorly on the record surveyor. CYA with facts kind of thing.?ÿ I do understand not wanting to make an issue where there isn't one, but down the road those landowners, or any new ones, may not have any interest in protecting the map if it's to their legal detriment.
Document their agreement to the pin, get the record straightened out, then finish your survey.?ÿ Find a mistake -- fix it.
JBS
Weird that I get interested in this thread for a few days and last night, while listening to political news and watching short true crime mysteries, I stumble across this discussion with Jerry Mahun (?) on re-establishing boundaries.?ÿ One of the cases he discusses is almost exactly this problem.?ÿ I don't think I got a clear picture of what his answer to it is (beyond, "well, it depends.") but here he's discussing recognition and acquiescence, which would be one way to get this 'fixed' (beyond just noting the discrepancy on the new plat) I think fairly painlessly.
The video should start at where he's discussing this, about 35 minutes in
