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Conflict within a deed

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(@stacy-carroll)
Posts: 922
Noble Member Registered
Topic starter
 

I spoke with the attorney that prepared the deed. He stated that the surveying company provided the descriptions and maps to be included in each deed. He will have to make some calls to figure out the protocol for correcting it. 

 
Posted : 04/04/2023 5:27 pm
(@nate-the-surveyor)
Posts: 10522
Illustrious Member Registered
 

and one contradicts the other, which prevails?

If I'm retracing your survey, and I find something wrong, I hope common sense actually prevails.

It's always best. 

N

 
Posted : 05/04/2023 1:04 am
(@jp7191)
Posts: 808
Prominent Member Registered
 

@stacy-carroll 

Speaking as someone who has done many of these maps. Often DOT has title people who put the instruments together. I highly doubt that the surveyor was the person who crafted the instrument and filed it incorrectly. My guess was the surveyor may have written the description (20/80 chance), although it probably came from inside the DOT working with the ROW survey and the engineers. Then the next step is to turn it over to the title people who insert it into the proper instrument, get it signed by the grantor and filed. The surveyor will be 3-4 degrees of separation by then. They took a description from the engineering design, had a description crafted and put it into the wrong instrument. 

 

Moe you are right on.  This is a huge issue and getting worse IMO with the lack of understanding/importance of land title documentation and execution.  It doesn't help that local government (planning departments) has taken a larger role in land title by regulating property through title and surveying.  Jp

 

 
Posted : 05/04/2023 6:41 am
(@jitterboogie)
Posts: 4275
Famed Member Customer
 

local government (planning departments)

And GIS people 

 

especially with no guidance or Interaction with actual licensed and experienced surveyors...

I was a city GIS Utility Coordinator and was awestruck at some of the things people were planning on doing and just figured they could do presumably with ignorance and impunity....like forcing people to either sell their property to the city or be classified as uninsurable because they were in the 500 yr flood plain...

 ftw?  Yeah, I still shudder the thoughts of that place and what they're doing 5 years later... yikes.

 
Posted : 05/04/2023 7:02 am
(@duane-frymire)
Posts: 1924
 

Clearly a mistake, so not much of a problem if it were actually a conveyance.  Surveyors opinion of intent maybe sufficient. But according to the post, this is a taking.  There isn't any agreed upon intent to analyze. Takings are grounded in constitutional law while conveyances are grounded in contract law.  Probably there is a statutory process that needs to be followed to correct this mistake without violating due process rights of the entity whose ownership was taken for public purpose. 

 
Posted : 06/04/2023 8:08 am
(@jumbomotive)
Posts: 31
Eminent Member Registered
 

@duane-frymire 

If it really is a "taking" and not deed as the OP originally characterized it. The distinction matters as you point out. But does not the intent of the Judge matter when analyzing for a scriveners error in a taking? Seems obvious to me that the Judge's intent was to award AOT what they petitioned for based on the included plan. We're not talking about decision language, but functionally a reference to an exhibit. May be more messy to correct error as you point out, but from the standpoint of surveying the "taking", I'm not sure I'd get too much heartburn making that call when accompanied by the appropriate CYA note.

 
Posted : 06/04/2023 11:52 am
(@dougie)
Posts: 7889
Illustrious Member Registered
 

Your answer may lie here within:

RULES OF CONSTRUCTION

 
Posted : 06/04/2023 12:36 pm
(@stacy-carroll)
Posts: 922
Noble Member Registered
Topic starter
 

This particular instrument was classified as a "Right of Way Deed". Most will reference a civil action number if it was a "taking". I will hold off finalizing our plat until things are corrected or clarified. There is a 0.75 acre difference between the two possibilities. 

 
Posted : 06/04/2023 5:31 pm
(@duane-frymire)
Posts: 1924
 

@jumbomotive I think a Judge would only be involved in a decision on how much is paid, if it was challenged in court.  But yeah, I too would go with the map in this case if pressed.  But would also let them know that something more is needed.

Stacy now posted it's a row deed, so maybe not a taking.  I would still try to get a correction deed, but surveyor opinion could be all that's available if many years have passed.  And of course if that's challenged by a different surveyor opinion then Judge will decide.

 
Posted : 07/04/2023 6:21 am
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