Hypothetical question:
A subdivider erroneously set his exterior tract boundaries beyond a monumented senior line(shown in red). He can't sell what he doesn't own, so title won't pass to the overlapped area.
My question is, if he sells the east 50' of lot three, should the 50' be measured from the incorrectly monumented tract boundary or should it be measured from the senior line? In the sketch below, would you use the North 0 degrees East or the North 15 degrees west?
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I went to an exam prep seminar yesterday where this question was debated at length.
Thanks for your help!
Jeff
Good question?
Classic estoppel setup. Assuming the deed language is "the east 50 feet of lot 3". The location is the E 50 of the lot, but when the problem is discovered the E 50 of what the grantor owned will pass to the grantee if the grantor has title to it still, or again (if original grantor at any time comes back into title, it will immediately pass). Happens by operation of law.
Typically, a legal says something like .... The East 50 feet of lot three IN ACCORDANCE WITH THE PLAT of ....
So, the West boundary should be measured from where the plat places the east boundary of lot three, then the senior line cuts offs part of the lot, and the owner gets what's left.
That is my opinion.
"A subdivider erroneously set his exterior tract boundaries"
"A subdivider erroneously set his exterior tract boundaries beyond a monumented senior line"
HMM?, the subdivider erroneously set, not his surveyor?
Let me throw this wrench in:
Had it been a surveyor one could argue the plat may hold. The presumption being the surveyor has greater knowledge.
However it being the subdivider selling the East 50' of his Lot 3, the case is strongly for 50' from the senior line.
One must also consider if 50' is neccessary and sufficient to make it a conforming lot.
Paul in PA
I would agree.
> Classic estoppel setup. Assuming the deed language is "the east 50 feet of lot 3". The location is the E 50 of the lot, but when the problem is discovered the E 50 of what the grantor owned will pass to the grantee if the grantor has title to it still, or again (if original grantor at any time comes back into title, it will immediately pass). Happens by operation of law.
While I agree with Duane's result, I would differ in the reasoning. The problem discloses a number of misapplications of separate bodies of law which shouldn't be mixed together.
The statement, "you can't sell what you don't own" arises from title law which deals with the parcel itself, not boundary law which determines the ultimate location of the boundaries of the "east 50 feet of Lot 3." The subdivider held title to Lot 3, therefore, can convey any part of Lot 3, including the "east 50 feet."
Construing the intent of the parties when determining the location of the boundary created by the division and conveyance of the "east 50 feet of Lot 3" requires application of the "rules of construction" which arise from laws designed to construe the meaning of words used in the conveyance document. Construction of the deed language, "east 50 feet of Lot 3" contains no patent ambiguity. The intent is clearly expressed, therefore the location of the boundary is easily determined by measuring 50 feet perpendicularly distant from the east boundary of Lot 3.
The confusion in the problem stems from the idea that there are two possible locations for the "east boundary of Lot 3." This thinking is not correct. There is only one location for the boundary between the owner of Lot 3 and the east adjoining owner. The problem supposes that Lot 3 extends beyond the boundary established prior to the creation of Lot 3. Boundary law limits the location of the boundary to the established line. The mere existence of conflicting dimensions based upon mathematical analysis won't provide a basis for determining the "overlap" (a legal impossibility under title law).
Let's presume that the surveyor of the subdivision has ignored the established location of the boundary, crossed the line, trespassed upon the neighbor's property and placed monuments in the neighbor's yard marking the corners of Lot 3. We must also presume that the west boundary of the "east 50 feet of Lot 3" has never been established, making the subsequent surveyor the first surveyor to ever attempt marking the line. If the line was established prior, then the role of the subsequent surveyor is a retracing surveyor who must determine how the boundary was established, retrace the footsteps, and document the established location (wherever it is discovered).
With those conditions at play, let's presume that the subsequent surveyor recovers the Lot 3 monuments, relies upon the representation that they mark the boundary of Lot 3, and marks the division line 50 feet perpendicularly distant from the recovered boundary. Has he performed his survey in bad faith? No.
Let's now presume that the subsequent surveyor discovers that the monuments are, in fact, located beyond the established boundary. The surveyor pulls back to the established boundary, determines that the north line of Lot 3 is 95 feet and the south line is 99 feet, measures off the east 50 feet and marks the division line. Has he performed his survey in bad faith? No.
What is presented in this problem is the appearance of a title conflict which is resolved as Duane suggested. The true problem is a boundary conflict which is governed by boundary law in accordance with the factual circumstances surrounding the establishment of the boundary which will include the actions of the landowners, representations, reliance and the passage of time.
Why don't we test for the real problems faced by the surveyor instead of math problems?
JBS
"Typically, a legal says something like .... The East 50 feet of lot three IN ACCORDANCE WITH THE PLAT of ....
So, the West boundary should be measured from where the plat places the east boundary of lot three, then the senior line cuts offs part of the lot, and the owner gets what's left.
That is my opinion."
I'd almost agree with you. I think typically a legal description I see states something to the effect of
Being 0.115 acres of land out of the A.Jones survey A-150, Harris County, Texas being more particularly described as follows:
The East 50' of Lot 3 Block 1 Sunny Meadows subdivision filed for record under Vol.xxx Pg.yyyy of the Harris County Deed records.
I would think that, and keeping in mind the rules of construction mentioned earlier, that once lot 3 was subdivided, lot 3A would become senior and due the sufficiency of the conveying deed. I would have to wonder if the purchaser had good reason to expect and rely on the representation that they would actually be purchasing 0.115 acres as opposed to a simple rectangle in which title passes short.
C'mon JB. This is a title problem, pure and simple. You really shouldn't encourage surveyors to put the line at some theoretical location. The grantor obviously intended to convey the E 50 feet of lot 3 as surveyed and shown in the deed/map. The only problem is the grantor did not own what they thought they owned. This is title, not boundary. The boundary is as described in the deed, coupled with extrinsic evidence. As always, if they offer an option of "E" "help the owners resolve their differences", then pick that choice. But that is not a legal interpretation of the question posed. Surveyors testing for a license should know what the laws are.
There may be subsequent actions that alter the boundary by unwritten means, but that does not affect the analysis of the original question.
This sure seems like the same question. http://beerleg.com/index.php?mode=thread&id=128636
It is very similar to that problem. However, the problem that I posted goes one step further by making you choose which line governs the new parcel described as the east 50 feet of lot 3.
When this question was posed in my review seminar the teacher and most of the class wanted to measure 50' from the senior line. I wanted to measure 50' from the subdivision lot line as determined by the original subdivision monuments. (I'm aware that title wouldn't pass to the overlapped area).
Thanks for all of the responses!
Duane, i don't think Estoppel has anything to do with what you have stated. Perhaps you're thinking of "after acquired title interest"?
I would also say that example is different in that you can see a large discrepancy between the platted dims and the measured dims for the original plat corners, so proration is definitely on the table for a solution. In this current problem, there does not appear to a discrepancy between the plat dims and plat monuments, so prorating the simultaneous conveyance is probably not a good option.
For those that think this lot should get its full width as measured from the senior line, which lot(s) should have to eat the discrepancy? IMO, the overlap is in the east 1/2 of lot 3 and should remain there. The owner would have recourse if he has a warranty deed, title insurance ... Or maybe he should have had the survey done before he bought the lot.
> C'mon JB. This is a title problem, pure and simple. You really shouldn't encourage surveyors to put the line at some theoretical location. The grantor obviously intended to convey the E 50 feet of lot 3 as surveyed and shown in the deed/map.
If it were a title problem, we'd be asking "who" the owner of Lot 3 is and "who" the owner east of Lot 3 was. There is no "title" question. We know "who" the owners are. The only thing we don't know is "where" the boundary is located. It could be on the section line. It could be on the Lot line. All the evidence we have is that there is a conflict between survey monuments on the ground, and a conflict between the dimensions on the plat and the section line monuments. None of that evidence tells us "where" the boundary between the owner of Lot 3 and the east adjoining owner is located. That's the surveyor's task and it can't be accomplished without sufficient evidence to determine the location in accordance with some legal principle (a boundary law).
>The only problem is the grantor did not own what they thought they owned. This is title, not boundary.
I disagree that this is a title problem. We've been taught to believe that it is, but it's simply not. The owner owns exactly what he thinks he owns... Lot 3. The question is, where is the east boundary of Lot 3? That's not a title question; it's a boundary question. Boundary location questions are resolved by analyzing the conflicting evidence, applying the rules of construction and the rules of evidence, and deriving the factual circumstances which led to the boundary establishment. That's not "title law;" it's "boundary law."
>The boundary is as described in the deed, coupled with extrinsic evidence.
Deeds don't establish boundary locations. They describe "what" was sold... Lot 3. That's title law. Boundary law will tell you "where" the boundaries of Lot 3 are located. The deed may contain evidence of boundary locations which, when coupled with extrinsic evidence of surveys, monuments, and subsequent actions of landowners through representations and reliance upon representations (the estoppel Duane noted in his first post), will provide the basis of factual circumstances under which the boundary is established on the ground. The idea that "the boundary is as described in the deed" is a complete fallacy. When the boundary has never been established on the ground, only then the deed might contain the "best available evidence" to locate the boundary on the ground.
>Surveyors testing for a license should know what the laws are.
I wholeheartedly agree with that. Unfortunately, few questions on any exam I took to get my license were founded on real evidence that should be relied upon to determine the location of the boundary. There is too little evidence necessary to determine the boundary location in the example provided. The evidence stops at what the surveyors have done and contains absolutely no information regarding the actions of the landowners which establish the boundary. The test questions teach surveyors to make decisions in a vacuum of information based solely upon what surveyors have done. It's a false approach to applying boundary law.
> There may be subsequent actions that alter the boundary by unwritten means, but that does not affect the analysis of the original question.
I'm not raising any issues regarding "unwritten means" (whatever those are) nor am I raising any issue that "alters" the boundary. My approach is to apply the rules of construction (the law governing construing the intent of the deed) to determine the boundary location (only if the boundary has not yet been established. That's where I agree with Duane's result, but for a different reason.
In the alternative, upon discovery of an established boundary along the section line, the argument can be made that the "east 50 feet" should contain 50 feet as measured from the established boundary. That's why there was so much debate by the testing committee over a simple rules of construction example. Neither location, once established by the owners, could be argued as having been established in bad faith by the surveyors or the owners.
Maybe the real answer to the test question is "neither." Have the surveyor who screwed up the subdivision plat pay for the loss of property that the owner of either the east 50 feet or the west 50 feet has lost as the result of either of the above choices.
JBS
You Assume Wrong Mr. Stahl
You assume that the overlapping map was created by a surveyor. The problem statement says the map was created by the owner. No surveyor is mentioned in the origin of this problem, except the governemnt surveyors that monumented the senior section line.
Paul in PA
>IMO, the overlap is in the east 1/2 of lot 3 and should remain there. The owner would have recourse if he has a warranty deed, title insurance ... Or maybe he should have had the survey done before he bought the lot.
I agree, again, with the result, but differ on "who should pay." Yes. The subsequent purchaser can file an action for recovery of damages from the grantor by warranty deed and, if that happens, the grantor should enjoin the surveyor who caused the damage. The title insurance company is typically off the hook as they don't insure boundary matters such as discrepancies or shortages of area. If the owner is astute enough to have purchased extended coverage insurance, then the title company will pay the damages (the loss of the property) then turn to the surveyor to recover not only their cost for the settlement but will include all of their costs and attorneys fees associated with the claim. Personally, the surveyor is better off to be sued by the owner.
JBS
Suppose The Judge Determines East 50' To Be At The Midpoint
The judge determines that the intent was to sell the East 1/2 of Lot 3. The lots being regular, 1 & 2 each get 100', Lot 3 gets what is left to the exterior line of the subdivision. Thus the midpoints of the North and South Lot 3 lines determines that the East half is equitably equivalent to the West half.
Judges tend to be equitable to the detriment of the law.
Paul in PA
Wrong?
> You assume that the overlapping map was created by a surveyor. The problem statement says the map was created by the owner. No surveyor is mentioned in the origin of this problem, except the governemnt surveyors that monumented the senior section line.
>
> Paul in PA
The original post depicts MONUMENTS on the ground. If you choose to ASSUME that the monuments were set by the subdivider or by an inanimate object such as a MAP, then you might want to reconsider what is WRONG from what is RIGHT.
JBS
Suppose The Judge Determines East 50' To Be At The Midpoint
Then the judgment, if not appealed, will stand as binding between the owners, the legal description will continue to read "the east 50 feet of Lot 3" and surveyors will continue to argue about the "correct" location of the boundary.
JBS
> C'mon JB. This is a title problem, pure and simple.
Right as always, Duane. The grantor conveyed a strip of land 50 ft. in width off the East side of the land he owned. Just because it turned out that he was mistaken as to where the East line of his property was didn't mean that the purchaser did not have a right to that fifty feet. This is clearly a matter for equity. Otherwise, Mr. Grantor can sell some imaginary 50 ft. in conflict with senior grant as many times as there are fish in the sea.