I just met with a guy who wants to buy a house built circa 1914 on a small, roughly rectangular 10,000 sf lot. He has been told by both his attorney and the title insurance company that there is a BIG problem in that the deed description does not exactly match the dimensions shown on a plan done in 1978. This is holding up the sale.
The 1978 plan was done to jog a lot line around an encroaching building on the neighbor's lot creating a 96 sf parcel that was transferred (this has nothing to do with the problem). The plan shows a pipe and a concrete bound as the back corners of the original lot - these are still there. There is a stockade fence along the back line running between these monuments. All other occupation looks ok to me also. The house is very close (it looks like about 2 feet) to the monumented rear line and to the right side line.
For some reason, the current deed, instead of calling for Lot 3 as shown on the plan, preserves the original deed description (presumably dating from before 1914) calling for 70 feet of frontage (70.00' plan), left side 146.5'(149.90' plan), rear 75.50' (75.37' plan), and right side 141.8' (143.49' plan). It then excepts the 96 sf parcel. The neighbor's current deed description references Lot 4 as shown on the plan.
The property was sold to the current owner in 2005 using this description with no problems. Now, everyone is freaking out about the "discrepancies". Note that if there was no plan in 1978 and they just had the deed description, there would be no problem.
These "discrepancies" are pretty typical for this area. Over the last century, enough corners were monumented that surveying here isn't too difficult. Improvements are usually built in accord with the monuments, and dimensions check with the deed about as well as this property, so I don't see a problem here. Most likely, the original "surveyor" just guessed at the location of the streetline, since it is poorly marked (old layout with buried stone bounds ~1000 feet apart) - this would explain the 2'-3' discrepancies in the sideline distances.
So why are the title insurance company and attorney freaking out about this? The buyer told me that they said the 1978 plan is too old, and they want a new plan. I offered to prepare an 81X plan (a type of plan showing existing lot lines that can be recorded in the Registry of Deeds) for him, but it would likely be very similar to the 1978 plan. The buyer is going to check with them and get back to me if that will do the trick. The survey should be straight forward.
I'm just puzzled as to why this is a problem that title insurance companies and lawyers actually care about. I see discrepancies worse than this that don't hold up sales.
Anyone have an explanation? The only thing I can think of is that it's because the house is so close to the lot lines.
This is one of those where a surveyor will say, "Yeah, so?" and the attorneys will have a hissy fit.
I'll just add to Bruces "yea so" truthful dialogue that like those same lawyer types will say - pay now or pay later. I kind of like that phrase and have used it when necessary. Looks like later is now sooner.
Hard to fix an old deed, but you can do little things like line adjustments and even an easement here and there to keep the peace. Then file your plat, cite the old deed in your new and improved description, and move on.
I'm sure there is more to the story, but best of luck to ya. Been there, done that and if you want a tee shirt that don't fit me anymore I'll send it to you. 😉
That's funny - "Yeah, so?" is almost exactly what I said to the buyer when he first described "the problem"! 😛
You have some pedantic person, at the title co, who is not familiar with the situation of old mons and deeds. A few phone calls, find out who it is, and sit them down for a while, at your computer, and explain that distance measuring has many factors, INCLUDING date and type of equipment used.
N
I had to calm down a title company worker with many years experience earlier this week. We had surveyed a small tract about 12 years ago. Then about 7 years ago we surveyed out another tract that wrapped around the first one on three sides. She discovered that on what must be the same line I had a certain bearing on the first survey and a bearing on the second survey that differed by 5 seconds. The line was roughly 200 feet in length. That is slightly less than 0.005 feet (1/16th of an inch). She thought I should redraw the second survey to show an identical bearing.
I fear offering an opinion about a Colony State's imbroglio; so here's the West Coast view.
As I've said many times, there's no more perfect description than the original (if valid) deed, including all warts and pimples. Around here, that's an original GLO patent (usually) or, once land is in private hands, a subsequent deed or subdivision. Both could be wrong by many feet. All surveys afterward which are entered into the record affect the parcel's location, but not the title. With good monumentation, a good survey and chain of title references; where's the beef? It is where it is, folks.
It seems in this case the Title company doesn't want to cover the 1978 survey's opinion of location. Why they are all worked up is beyond me. Most Title companies I work with are overjoyed there's a recent ROS that proves location, because if that survey is fraudulent they can recover from the surveyor, assuming he's not jackleg and has no insurance or assets.
In the course of hundreds of surveys for land transactions in my career, only two beefs from the title company have come up regularly upon surveying a parcel's location: 1) They desperately want me to delete an easement shown on my ROS which could make the property undevelopable, like something from the twenties which allows a now defunct water utility a 200' swath for pipes. 2) The transaction is cost-based on acreage, and a modern survey (mine) shows the acreage is way above or below the original deed's "more or less" statement or from the original deed's metes and bounds calc'ed area. Either the buyer or seller is in for a surprise which could bust the deal cost wise. My cheap advice is never base sale cost on acreage.
Well, I stick to my guns. Determine the risk of an ancient emcumbrance and insure against it. Usually, the title company is my best friend because they send me a preliminary report and after records research I eliminate 30% of the emcumbrances on the Schedule B list because they do not affect the parcel. Also I point out lot line adjustments, recent municipal street widenings, etc. which they've missed so they can add it tho Schedule B.
So, I suspect he folks you are dealing with are a jackleg title company and lawyers possibly looking to line their own pockets, or are egregiously incompetent. Any good title company should insure against the 1978 survey and issue title insurance with no qualms. When dealing with underlings at a title company ask to speak with their supervisor, keep climbing the ladder until you run into somebody who knows the game. Keep in mind, you are a helplful player in this game, not the enemy.
> ... Colony State's imbroglio...
My new favorite phrase!
Attorney: "Your survey is wrong."
Me: "No, it is based upon the well established legal theory of a Colony state's imbroglio."
Attorney: "Oh, of course, my bad!"
If they decide to go ahead with a new survey, I wonder what will happen when I differ at all from the 1978 plan? :-O
About 30 years ago (pre my licensure) I had a "go round" with an attorney over less discrepancy than that. The original subdivision was done by a pretty good surveyor in the 1940's. His measurement skills left a little to be desired but he set good, easily recognizable, easily recoverable monuments (1" crimped top pipes). We found all four corners with a maximum distance difference of 0.5 feet. I prepared the plat, forwarded it to the client and then received a call from the closing attorney that I "had" to change the plat because the distance shown was "too long" and that the Grantee COULD NOT sell something he didn't own. I tried my best to explain the "monument controls" situation but "NO, you HAVE to change the plat". I called my boss (the stamping surveyor) in and explained the situation. He knew the attorney and called him. There were some words exchanged that can't be repeated in mixed company but the plat wasn't changed. I think they got a new closing attorney.
ANdy
