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Description Qualifiers

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(@bstrand)
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When you guys are writing a description for new parcels, for example 3 new parcels and an access easement for them, do you try to add qualifier language to the descriptions or do you just write a description for each thing and let the owner's title company or lawyer put it all together?

 
Posted : December 10, 2024 9:51 am
peter-lothian
(@peter-lothian)
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If by "qualifier language" you mean describing what the easement is to be used for - no. I write a description of the parcel boundaries only. It's up to the attorney to write the language detailing the rights being conveyed, restrictions, etc.

 
Posted : December 10, 2024 10:04 am
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Norman_Oklahoma
(@norman-oklahoma)
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Define "qualifier language". 

If you mean including language that specifies that the description is of an easement of some sort or a right of way dedication, etc. - no, I do not. 

 
Posted : December 10, 2024 10:07 am
(@bstrand)
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image

By qualifier language I mean stuff like "together with" or "subject to".  In the example above it could mean describing the new parcels and adding together with and/or subject to the easement description.

I think I've worked with guys that would do this as part of writing the descriptions, but I've been keeping them separate and letting the title company or whoever writes the final deed do that combining instead.  I was curious to see if I was doing what most guys do or the opposite.

 
Posted : December 10, 2024 10:24 am
MightyMoe
(@mightymoe)
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Yes, I use them. 

 
Posted : December 10, 2024 10:53 am

Norman_Oklahoma
(@norman-oklahoma)
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I absolutely do use TOGETHER WITH and EXCEPTING THEREFROM, etc. Nevertheless, I would not use it for the purpose shown in your example - to append a description of an easement to the description of a property. I'd be preparing fully separate documents for the property and the easement. 

I've seen plenty of iterations of your example situation.   Including some where the easement was later extinguished, by express document or by merger, only to have the description regurgitated word for word in a subsequent sale document thus creating an ambiguity. 

 
Posted : December 10, 2024 10:57 am
(@bstrand)
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Posted by: @norman-oklahoma
Including some where the easement was later extinguished, by express document or by merger, only to have the description regurgitated word for word in a subsequent sale document thus creating an ambiguity.

As far as I understand it that sort of thing is supposed to be caught by the county review in my area now since years ago people used to sneak easements into existence via qualifying language.

Anyway, sounds like one can't really go wrong by keeping the descriptions all separate.

 
Posted : December 10, 2024 11:45 am
MightyMoe
(@mightymoe)
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I prefer to have the access easements attached to the description. I got embroiled into a nasty court case when I wrote an easement to a property across the grantor and the description to the back parcel behind the grantor's lands separately. A neighbor purchased the remaining parent parcel then told the first grantee that he didn't have access. Long story short the title company didn't file the easement with the warranty deed. What saved me was that the easement got filed with the mortgage, showing that I not only wrote the easement but delivered it to the title company. The attorneys all said the bank had rights to access but not the owner. The whole thing was a huge mess, one of the few times a title company had to pay to straighten it out. So I always include the access to a tract in the same description, if the easement gets vacated later and then regranted that's way less of an issue. Same as parent parcels that get split up and the entire parent parcel gets granted later without exceptions.  

 
Posted : December 10, 2024 1:39 pm
holy-cow
(@holy-cow)
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All tracts are prepared as separate descriptions, including the easement.  I normally do not specify the use of the easement unless my client insists it will only be an ingress/egress easement.  In that case, I normally insist that it be 40 feet in width.

 
Posted : December 10, 2024 1:56 pm
(@bstrand)
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Posted by: @mightymoe
Long story short the title company didn't file the easement with the warranty deed.

Interesting.  That looks like a title company blunder though and not anything wrong with the way you did things.

 
Posted : December 10, 2024 2:22 pm

thebionicman
(@thebionicman)
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If a description for a parcel is also the creation document for an easement I write the reservation or grant into the description. It prevents one transaction from happening without the other.

I used to prepare deeds and boundary agreements, but I stopped most of that long ago. It's hard enough keeping up with survey law and not worth my time. It also doesn't save the client any money. 

 
Posted : December 10, 2024 2:41 pm
(@wa-id-surveyor)
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Posted by: @bstrand

Anyway, sounds like one can't really go wrong by keeping the descriptions all separate.

That's the most common occurrence in my work area.  We create legals and exhibits, it's up to Attorney to prepare the deeds and language.

 
Posted : December 11, 2024 9:06 am
Norman_Oklahoma
(@norman-oklahoma)
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The sad facts of life today are that it isn't really enough to just say that you are granting "an easement" or even "An easement for such and such purposes" and leaving it at that. That leaves a hole that any attorney can drive a bus through. The deed forms my fair city uses have three pages of whereas's and therefor's  for each different kind of easement.  

 
Posted : December 11, 2024 9:52 am
(@murphy)
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Guiding clients through the entire process of land conveyances is a fundamental part of the surveying services I offer to clients.  My budget includes a couple of hours to work with my client's attorney to get the language correct and to check that the documents have been recorded with the correct descriptions and references.  Here's an example of a description I wrote a few years back.  I contacted the client's attorney regarding the easement's name and provided them a chance to review it before I signed, sealed and delivered it.  It has been heavily redacted.  Be aware, I work in a Colonial state where only subdivision plats are required to be recorded and a tie to NC-Grid (a codified term meaning the NCSPCS NAD83-2011) is mandatory.

 

A 0.670 acre Electric Utility Easement located in XX Township, XXX County, North Carolina on lands of Bob and Sue Smith (hereinafter Smith), see Plat Book-150 / Pg-102, abutting lands of City of XXX (PIN: XXXX-70-1215, Deed Book XXX / Pg-X45) as shown on, and in the event of a discrepancy this description shall yield to, that certain plat titled, “Easement Survey for Bob and Sue Smith”, by XXXX Inc., Project Number X-23-1, performed under the direct and responsible charge of Murphy, PLS L-XXXX, dated XXX XX, 20XX, recorded in Plat Book X Page X at XX County Register of Deeds, referenced to North Carolina State Plane Coordinate System NAD83-2011 in US-Ft Grid distances with a combined scale factor of 0.9998809378, and more particularly:

Commencing at NGS XXX Base ARP - PID XXXXX (N:XXX,419.53 E:X,X34,765.02) thence N 89° 48’ 30” E  103,328.25ft to a found concrete monument (N:XXX,765.38 E:X,X38,092.71) the Point of Beginning; thence from the Point of Beginning and coincident with lands of City of XXX and Smith N 11° 45’ 03” W  434.47ft to a found iron rebar; thence N 11° 45’ 51” W  402.13ft to a found iron rebar; thence N 11° 46’ 01” W  159.40ft to a calculated point, said point being S 11° 46’ 01” E  375.17ft from a found concrete monument, a corner to XXX Regional Airport; thence leaving lands of City of XXX and on a new line through lands of Smith the following five courses: S 25° 47’ 11” E  82.56ft to a calculated point; S 11° 46’ 01” E  79.30ft to a calculated point; S 11° 45’ 51” E  402.13ft to a calculated point; S 11° 45’ 03” E  426.96ft to a calculated point; S 52° 54’ 38” E  482.96’ to a calculated point; thence S 25° 47’ 11” E  43.87ft to a calculated point on the boundary of City of XXX and Smith, said point being N 52° 54’ 38” W  479.75ft from a found iron rebar; thence coincident with City of XXX and Smith N 52° 54’ 38” W  529.51ft to a found concrete monument, the Point of Beginning.

Meaning and intending to relocate the City of XXX Electric Utility Easement from the area shown as Easement-B, to the area shown as Proposed Easement-A, per said Easement Survey for Bob and Sue Smith.

 

 
Posted : December 11, 2024 10:56 am