Bought the farm - JBS
Well...I wasnt sure JB!B-)
Bought the farm>JBS
To Tom's point I too have seen legal descriptions change from one transfer to the next where no subdivision is involved. More often than not surveyors had no part in it. One in particular I recall was in a fractional section where a person intending to make the deed more understandable to a layman unintentionally changed the area by 5 acres.
I agree with leaving the existing deed as written if it can be retraced as written. This would be a change in standard of practice in our state however. We have so much verbiage about preparing accurate descriptions written into our survey code that the community at large relates it to describing accurate survey measurements. That's just the way it's done and no one including the BOR has ever questioned it as far as I know.
Bought the farm>JBS
I just left the courthouse and proposed the idea to the title examiners in the deed room. There was moderate agreement that the chain of title stays firmly intact if the new legal description call for "all of the property as described in.....".
Bought the farm>JBS
Tom
A new description recorded for an existing tract is how things happen in my end of the state as well. Sometimes it is nice to have, but it is often a nightmare to work around. We have more than one surveyor's name (from years back) that when you see the description and follow it back further, you often find that he completely screwed everything up. We also have people (probably a lawyer) who 'fixed' descriptions by applying adjoiner calls with original descriptions.
I am mostly in agreement with JB Stahl on this one. If the description is sufficient for a surveyor to place it one the ground, it is a sufficient description. I try to not provide a new description on a retracement of a sufficient description.
At my end of the state the title companies, banks, and lawyers will often ask for a new description on a retracement. If requested, I will prepare a description based on the 'new' survey and follow it with a statement of the above description is based on a retracement survey completed on DATE and is intended to describe the same property described in Deed Book XXX Page XXX as follows: and then recite the 'old' description.
Now my 'new' description will hopefully be right and the exact same answer that any other surveyor would come to in retracing the property. However, it is nothing more than my opinion on what the original description stated.
I am hopeful that we can get support and move forward with the plat law. Many people on this end of the state have already started grumbling about it. I would like to see it in place as long as the language is such that common sense applies. As the first draft stated, every survey would need recording. However, there really is no need to record a retracement survey of a lot in a platted subdivision. I would like to see recording of parcels with no record plat on file or with significant (who defines that) changes from a recorded plat.
Bought the farm>JBS
> It is not that difficult to update the description with a surveyors affidavit that the property as described includes the previous property as previously described without gaps or overlaps.
Agreed, Foggy. In states where no survey repository exists, they must get creative in their solutions. A surveyors affidavit is likely the best. Affidavits are an expression of opinion which is non-binding. Placing it in the title record is merely placing evidence of someones (in this case, the surveyor) opinion regarding the evidence and location of the boundaries of a particular parcel.
The common problem with affidavits is they are commonly indexed in the miscellaneous records under the name of the affiant (which makes them nearly impossible to find). One way which may help is for the affidavit to make a specific referent to the property by including the record description of the parcel and a reference to the parcel's index number so the recorder can easily cross-reference the document to the parcel abstract. At least it will have a better chance of showing up in the title search.
You do what you can when there is no survey filing repository.
JBS
Bought the farm>JBS
"If the description is sufficient for a surveyor to place it one the ground, it is a sufficient description."
That's the gist of the problem with using old descriptions here. I'll bring in the fences here. If resurveying a deed with calls to down trees, distances in poles and bearings to the nearest degree, closes within 500 ft, in the hills and hollers, and there are old fences that generally agree with the lines, then maybe that's a sufficient description now. When Super Seven Farms comes in and removes the fences, it sure would be nice to have an updated description in the prior deed to put the lines back in for the neighbor.
Bought the farm>JBS
> That's the gist of the problem with using old descriptions here. I'll bring in the fences here. If resurveying a deed with calls to down trees, distances in poles and bearings to the nearest degree, closes within 500 ft, in the hills and hollers, and there are old fences that generally agree with the lines, then maybe that's a sufficient description now. When Super Seven Farms comes in and removes the fences, it sure would be nice to have an updated description in the prior deed to put the lines back in for the neighbor.
That's precisely the point, eddy; however, it misses the point. The fence, as evidence of the boundary (and any other features reflected on a survey), as well as the surveyor's opinion regarding the boundary location based upon the evidence they've recovered, is just that: boundary location evidence. Yes. That evidence needs to be made available for future generations... of who? Owners? Title Companies? Attorneys? No, Surveyors. Surveyor's maps and records are made for future surveyors. How many owners actually know how to read a survey map? The evidence needs to be perpetuated, not in the deed description, but on a map found in a public repository.
Once the deed description is changed (even if for good motives), it becomes constructive notice of someone's opinion of the boundary location. That someone was not a part of the original agreement and their opinion, alone, cannot be binding. Yet, by placing it in the title record, it is presumed to be binding by virtue of the constructive notice. The title company is now being asked to insure someones opinion that the parcel described is the same as the parcel which has a complete chain of title. They insure title, not surveyor's opinions with regard to evidence of boundaries.
As surveyors, we tend to impose our expectations of precision into deed descriptions when that is not their intended purpose. The purpose of the deed is to identify the parcel being conveyed against any other parcel. That has nothing to do with whether or not the description can be treated as a stand-alone document containing every minute detail necessary to determine its boundary positions on the ground.
To quote a favorite quotation of one of our recently passed colleagues:
>“It is not necessary, and it is not humanly possible, for the symbols of description, which we call words, to describe in every detail the objects designated by the symbols. The notion that a description is a complete enumeration is an instinctive fallacy which must be got rid of before interpretation can be properly attempted.” Wigmore’s compendium on “Evidence”, 2nd. Edition, Vol. 5 § 247”
RIP, Richard...
Even after perfecting that description, nothing will prevent the evidence from fading or technology from increasing our precision. Surveyors simply need to allow for the perpetuation of boundary evidence by creating a repository for survey records. The survey records should be non-binding and should be under the control of the surveyors for the benefit of surveyors. There should be no review requirements, as the opinions expressed are non-binding. The filing fee should be cheap, and the documents made readily available over the internet. A great service for a professional surveyor organization to undertake. The public will receive benefit from the stability their boundaries will achieve throughout subsequent generations. Surveyors will receive benefit by lowering their potential liability caused by overlooking that fatal piece of evidence that another surveyor discovered. We can build off of the work of one another, making our overall service more reliable.
JBS
> I would love to sit through a seminar on this subject with perhaps a title guy and a surveyor as instructors. I believe the audience participation would be lively.
This is precisely the type of seminars that I have presented at state surveyor conferences across the country. I haven't had the pleasure of attending many of the eastern states. Work up an invitation and a list of topics, and I'd be thrilled with the opportunity to lead the discussion.
We need to stop pulling our punches, take hold of our role in society, and take responsibility for the services we are expected to perform.
JBS
Bought the farm>JBS
My problem, as a long time Colonial Surveyor, is using descriptions that are simply bounded by abutters now long dead for the past 300 years. I do not believe that using a survey plat, recorded at the Registry of Deeds, and referencing the prior deeds, in your new description will change the chain of title.
Practicing in a state that requires a survey plan to be recorded for any new or alteration in a property line I have found that plan references will be much more easily understood by everyone than "bounded on the North by Obed brooks, The east by Seth Nickerson, the south by Obed Brooks Jr. and the west by Gershom Hall, containing 4 acres more or less."
We do have the ability, and frequently use it, to record perimeter plans, with a certificate stating that no new lines are being created with this plan.
I find the title easy to run backwards with a plan to start with....
edit: Our affidavits are attached to deeds, if necessary.
Don
> This post has been one of the biggest eye-openers for me in a long time. Thank you for your thorough answers JB. I would love to sit through a seminar on this subject with perhaps a title guy and a surveyor as instructors. I believe the audience participation would be lively.
Tom, I can only highly recommend JB as a speaker. We've had the pleasure of having him out to Oregon a few times and the auditoriums are always packed and lively.
Cheers.