I just finished a survey where the client had property that has been in his family for almost a 100 years. It's always been 52.2 Acres by deed. Well by my survey it's 47.88 Acres. This is very common for West Virginia. I know some other states it's not as common but here it's pretty much every job. It's either more or less. Even says it in the deed. more or LESS.
He is not happy he wants to know what happened to the rest of his property. I tried to explain that the old deeds aren't very accurate when it comes to acreage. But he is insisting that part of his land sits across the road. He said the rest of his land is across the road and that it was given to his family on a handshake.
I told him I can't survey a handshake agreement UNLESS the person that has title to the property agree's. Well he isn't happy. Cause it was a handshake agreement and those are good. I told him give me a deed and I'll survey the agreement. He can't of course. Or go to the land owner and if he agrees then I'll survey it.
He is totally ticked off he is missing acreage and is insistent the acreage is across the road and deeded by handshake. But his deed does not cover anything across the road. It never had 52.2 Acres. Just the deed said it did. more or less.
To beat all the neighbor who is supposedly the other end of the handshake was moving our traverse nails. He thought we were out there to take his land. he is not agreeable to the handshake agreement.
I'm sure I'll be back out there. And you can shake on that.
Statute of Frauds
The key phrase, basically meaning that everything must be in writing to be valid when it comes to real estate transactions. Handshake deals aren't worth the paper they aren't written on.
Holy Cow, post: 333085, member: 50 wrote: Statute of Frauds
The key phrase, basically meaning that everything must be in writing to be valid when it comes to real estate transactions. Handshake deals aren't worth the paper they aren't written on.
Yes, it's called the Statute of Frauds. Real estate transactions have to be in writing to be inforcable.
Bow Tie Surveyor, post: 333092, member: 6939 wrote: Yes, it's called the Statute of Frauds. Real estate transactions have to be in writing to be inforcable.
The statute of frauds refers to the requirement that certain kinds of contracts be memorialized in a writing, signed by the party to be charged, with sufficient content to evidence the contract.
I have found numerous references to "an unrecorded deed" while searching land records. Many colonial states did not require the recording of deeds to validate the transfer of ownership.
Bow Tie Surveyor, post: 333092, member: 6939 wrote: Yes, it's called the Statute of Frauds. Real estate transactions have to be in writing to be inforcable.
Enforceability being the key; the Statute of Frauds is a devise used for the defense of a breach of contract lawsuit. As long as both parties don't contest an oral agreement it is valid.
Also most jurisdictions have "partial performance" clauses that can negate the Statute of Frauds. When the plaintiff in the breach of contract action has, in good faith, acted believing the contract to be valid it can justify the enforcement of the contract. The courts will almost always validate an oral contract for real estate when there has been both payment and possession (but not necessarily when there has just been one or the other).
John Giles, post: 333083, member: 57 wrote: I just finished a survey where the client had property that has been in his family for almost a 100 years. It's always been 52.2 Acres by deed. Well by my survey it's 47.88 Acres. This is very common for West Virginia. I know some other states it's not as common but here it's pretty much every job. It's either more or less. Even says it in the deed. more or LESS.
He is not happy he wants to know what happened to the rest of his property. I tried to explain that the old deeds aren't very accurate when it comes to acreage. But he is insisting that part of his land sits across the road. He said the rest of his land is across the road and that it was given to his family on a handshake.
I told him I can't survey a handshake agreement UNLESS the person that has title to the property agree's. Well he isn't happy. Cause it was a handshake agreement and those are good. I told him give me a deed and I'll survey the agreement. He can't of course. Or go to the land owner and if he agrees then I'll survey it.
He is totally ticked off he is missing acreage and is insistent the acreage is across the road and deeded by handshake. But his deed does not cover anything across the road. It never had 52.2 Acres. Just the deed said it did. more or less.
To beat all the neighbor who is supposedly the other end of the handshake was moving our traverse nails. He thought we were out there to take his land. he is not agreeable to the handshake agreement.
I'm sure I'll be back out there. And you can shake on that.
Oral agreements can reach the threshold of a contract and be enforceable. But, they still require all the normal parts of a written contract in order to be a contract. Some parts will be implied if other parts can be proven. Are there signs of use by your client on the other side of the road? Can he produce evidence of an exchange of something of value? Sounds like not.
I did survey a parcel once that was exchanged via handshake many years before. Carried out by the sons of adjoining farmers who had heard their respective fathers (both now deceased) talk about it. They agreed to honor it, but didn't have the details so had to agree on exactly where the lines would be, and who would pay for the survey. I gave them a smaller than average fee (which they split) in the interests of rewarding such honorable (and rare) behavior. It is now a written contract per deed, map, and monuments.
Duane Frymire, post: 333117, member: 110 wrote: I did survey a parcel once that was exchanged via handshake many years before. Carried out by the sons of adjoining farmers who had heard their respective fathers (both now deceased) talk about it. They agreed to honor it, but didn't have the details so had to agree on exactly where the lines would be, and who would pay for the survey. I gave them a smaller than average fee (which they split) in the interests of rewarding such honorable (and rare) behavior.
Frymire Land Surveying - ask about our "civility discount" 😀
JEFLS, post: 333111, member: 1771 wrote: The statute of frauds refers to the requirement that certain kinds of contracts be memorialized in a writing, signed by the party to be charged, with sufficient content to evidence the contract.
I have found numerous references to "an unrecorded deed" while searching land records. Many colonial states did not require the recording of deeds to validate the transfer of ownership.
It's my understanding that the statute of frauds, and many state laws, only requires the transfers to be in writing, not necessarily publicly recorded for constructive notice. Now, if two parties have written title to the same property, often in error or the result of fraud on by the grantee, state law will dictate if the date of transfer or date or recordation wins.
Surveyors mark the boundaries of written deeds, not handshakes, on the ground.
