I'm dealing with a situation where the recorder ÛÏrejectedÛ a deed because it was missing the ÛÏ to indicate minutes. The deed was recorded but marked ÛÏNCÛ for no change in ownership. A letter was sent but it took two years for them to record another deed. By that time the ownership had changed (guy died - pased to heirs) and the new deed was also marked ÛÏNCÛ this time because granter wasn't considered owner. The original owner had signed the corrected deed but it hadn't been recorded before he died. The recorder and assessor never updated the the maps and never placed the parcel on the tax rolls. I was asked to do some surveying, part of which, is this parcel. So I get the maps and can't figure it out, why is this parcel not mapped. I got a copy of the deed from the client and also got it all from the recorders office. It's been over ten years now and they have never paid taxes on the parcel although they occupied it by building a regulating reservoir an the parcel for their irrigation system.
Its a homeowners association and is loaded with a couple real good lawyers. They hope to get the current ÛÏownerÛ of the pond to sign a new deed as the ÛÏbestÛ way to resolve the problem. This could be easy to fix or become very interesting. I wish they'd sue the recorder but don't expect that to happen.
I'm just a curious onlooker from another state. In my state, the assessors are town officials, and if there is a disagreement with the value they place on a property, their first course of action is for the taxpayer to file a grievance with the assessor. If dissatisfied with the result, the assessment can be appealed to the town's board of civil authority, of which I am a member. (Further appeal options are available).
The only time a property owner would have cause to bring a deed or survey plat to the assessor's attention would be if the property owner disagreed with the assessed value. Also, the assessor could change a property's assessment on his/her own initiative if issues arising in neighboring properties made the assessor realize the value was wrong (this has happened in my town, both increases and decreases, related to shared lots with lake access). The tax map only affects the assessed value. In my neck of the woods, the assessor wouldn't formally reject the deed, rather, the assessor would decline to change the assessed value and the stated acreage. Local policy in my town is to prefer a signed and sealed survey plat over whatever the deed might say.
Since deeds don't necessarily reflect ground truth, and neither the grantor nor the grantee is held responsible to third parties to provide an accurate description, I wouldn't expect the reaction of assessors to deed changes to be rather unpredictable. I think it would be a reason for concern if an assessor ignored a recent survey plat.
roger_LS, post: 414220, member: 11550 wrote: Would you agree that this is an issue that Title Insurance would cover? If so, why would you take it entirely upon yourself to solve the problem given the Title Co. has a responsibility? I agree that in many cases Title is inextricably connected to location but see this as different as evidenced by judgement which has clearly separated the two. Out of curiosity, how exactly would you go about "cleaining up the record"?
I would not take it upon myself, I would pursue the work. The exact work flow would be partially driven by local practice and the law. The likely vehicle would be an accommodation recording noting the chain of events so the judgment description is on the roll books for my parcel. A survey for others to follow wouldn't ba a bad idea either. Having the title company fund the fix is another matter entirely. I certainly wouldn't let them handle additional work if it were my property.
As for the judgment, it certainly did not separate location and title, it unified them.
thebionicman, post: 414257, member: 8136 wrote: I would not take it upon myself, I would pursue the work. The exact work flow would be partially driven by local practice and the law. The likely vehicle would be an accommodation recording noting the chain of events so the judgment description is on the roll books for my parcel. A survey for others to follow wouldn't ba a bad idea either. Having the title company fund the fix is another matter entirely. I certainly wouldn't let them handle additional work if it were my property.
As for the judgment, it certainly did not separate location and title, it unified them.
My guess at what a title insurance company would do is tell them the fence is the boundary per the judgement and the title extends to the boundary, deed is good. End of story. If any fix needs to be applied it would be to educate the assessor and others about the law. Around my little part of the world they might believe a title company lawyer and they would just blow off a surveyor as some nut for telling them the same thing. Hard to educate some of those in positions of power who know it all.
LRDay, post: 414260, member: 571 wrote: My guess at what a title insurance company would do is tell them the fence is the boundary per the judgement and the title extends to the boundary, deed is good. End of story. If any fix needs to be applied it would be to educate the assessor and others about the law. Around my little part of the world they might believe a title company lawyer and they would just blow off a surveyor as some nut for telling them the same thing. Hard to educate some of those in positions of power who know it all.
I agree. Title Insurance is for the Title. Nothing is wrong. I doubt any clerk or attorney would be dispatched to educate anyone.
roger_LS, post: 414220, member: 11550 wrote: Would you agree that this is an issue that Title Insurance would cover? If so, why would you take it entirely upon yourself to solve the problem given the Title Co. has a responsibility? I agree that in many cases Title is inextricably connected to location but see this as different as evidenced by judgement which has clearly separated the two. Out of curiosity, how exactly would you go about "cleaining up the record"?
The Title Company's obligation is to insure title. They will do enough title work they deem necessary to evaluate the risk. They especially don't determine boundary and Senior rights to help them place a senior/junior line. The location of the boundary is on the surveyor. They even typically "exclude" from their insurance issues that may be found by a land survey. A good title company might help you out with records that they may have in their files, but ultimately it is up to the surveyor to determine the boundary and it often takes research to ascertain it. If the title company's isn't adequate, then too bad, so sad.
Tom Adams, post: 414267, member: 7285 wrote: The Title Company's obligation is to insure title. They will do enough title work they deem necessary to evaluate the risk. They especially don't determine boundary and Senior rights to help them place a senior/junior line. The location of the boundary is on the surveyor. They even typically "exclude" from their insurance issues that may be found by a land survey. A good title company might help you out with records that they may have in their files, but ultimately it is up to the surveyor to determine the boundary and it often takes research to ascertain it. If the title company's isn't adequate, then too bad, so sad.
This isn't the type of situation they can exclude (one of the few), they should have seen the judgement and incorporated it into the transfer when the south parcel was sold; that being said, title insurance isn't a requirement, the south parcel could have been sold a number of times without insurance.
Like many things surveying, this boils down to an individuals comfort level. I can respect the many who feel just fine moving forward as is. Personally, I'd insist that Title Reports for parcels to the South be revised to reflect the judgement. This was a major oversight by the Title Co's who overlooked this judgement and they should fix it. In this case, it's really not a complicated issue that a surveyor needs to be intimately involved with. Real simple...there was a judgement that permanently fixed the location of the line, period. Now all future deeds/title reports should reflect this decision. As a business matter, I don't see getting involved as a profitable proposition, lots of messing around, and the skills of a surveyor are really not needed. Have the Title Co. revise the reports then get back to me when it's done, in the meantime I'll move on to other jobs where I can make some money.
Tom Adams, post: 414267, member: 7285 wrote: The Title Company's obligation is to insure title. They will do enough title work they deem necessary to evaluate the risk. They especially don't determine boundary and Senior rights to help them place a senior/junior line. The location of the boundary is on the surveyor. They even typically "exclude" from their insurance issues that may be found by a land survey. A good title company might help you out with records that they may have in their files, but ultimately it is up to the surveyor to determine the boundary and it often takes research to ascertain it. If the title company's isn't adequate, then too bad, so sad.
Let's stay on point please, I don't see anyone arguing that the Title Co. needs to determine junior/senior rights.
So what your saying is the court did not require both deeds be brought up to date to reflect the court decision? Or did someone misconstrue the decision by surveying metes & bounds when the court decided for a location of the line other than that supported by evidence other than the fence?
Court actions in my area are very difficult to find because they are not indexed geographically (Sec.Twp.Rng.).
Most decisions here simply say the existing deed line is now at the fence location. In other words I still own the SE1/4 of the SE1/4 and you still own the SW1/4 of the SE1/4, but the line between us is not where the math or some other evidence puts it. No need to record new deeds and no further surveying is ordered by the court nor is a surveyor involved with a case required by the court to record a plat showing where line is.
Steve
Brian Allen, post: 414218, member: 1333 wrote: I'd obtain a copy of the judgment and provide copies to the title company, assessor, etc. If they want to argue with the court, so be it.
What a messed up world we work in. First, many claim that any deviation from exact description MUST be certified by a judge, Then when a judgment is made, it is called into question because the "old" description doesn't exactly match the judgment!!!!! WTH??
Anderson v Hayes, 185 P.3d, 253:
If a boundary by agreement is established, "the parties to the agreement are no longer entitled to the amount of property provided for in their deeds and must absorb the effect of any increase or decrease in the amount of their property as a result of the new boundary." Stafford v. Weaver, 136 Idaho 223, 225, 31 P.3d 245, 247 (2001). The new boundary then is binding on successors in interest who purchase with notice of the agreement. Duff v. Seubert, 110 Idaho at 870, 719 P.2d at 1130 (1985).Campbell v Weisbrod, 245 P.2d 1052:
The particular rule applicable here is that where the seller and the buyer go upon the land and there agree upon and mark the boundary between the part to be conveyed and the part to be retained by the seller, the line thus fixed controls the courses and distances set out in the deed executed to effectuate the division agreed upon. Martin v. Lopes, 28 Cal.2d 618, 170 P.2d 881; Lake, for Use and Benefit of Benton v. Crosser, 202 Okl. 582, 216 P.2d 583; Nebel v. Guyer, 99 Cal.App.2d 30, 221 P.2d 337; Millikin v. Sessoms, 173 N.C. 723, 92 S.E. 359; 170 A.L.R., note, 1144. In S. S. M. Realty Co. v. Boren, 211 N.C. 446, 190 S.E. 733, it was held that a boundary line, established by tenants in common going upon the premises and marking the dividing line and making deeds intending to divide the property along the line thus marked and agreed upon, controls over the courses and distances set out in the deeds; and that by so doing and thereafter dealing with the land with reference to the line thus established they estop themselves and their privies from thereafter claiming a different line under the calls in the deeds.
The key to the OP from Duff v Seubert "...either actual knowledge of the agreement between the Seuberts and the Woodses, or sufficient facts to put them on notice to inquire, then they cannot be bona fide purchasers for value even though they may have "relied wholly upon the legal description of said parcel as is set forth in Exhibit C,"
It appears you are in what we call an "inquiry notice" State. I would imagine the fence is enough to trigger inquiry, so the 1980 judgement should be affective against the southern parcel owner even though not in their deed.
sjc1989, post: 414353, member: 6718 wrote: So what your saying is the court did not require both deeds be brought up to date to reflect the court decision?
Steve
Correct, the northern deed was the only one that was updated. The southern owners were non-responsive which is probably why they didnt spend time or $ on the issue.
WA-ID Surveyor, post: 414364, member: 6294 wrote: Correct, the northern deed was the only one that was updated. The southern owners were non-responsive which is probably why they didnt spend time or $ on the issue.
That stinks, but it happens all the time. The state associations need to press this issue to make sure these things are cleaned up. Whether it's simply educating the courts or legislation.
Steve
WA-ID Surveyor, post: 414118, member: 6294 wrote: In 1980 a Judment is made for the owner to the north claiming the fence as the actual proeprty boundary.
Brian Allen, post: 414218, member: 1333 wrote: What a messed up world we work in. First, many claim that any deviation from exact description MUST be certified by a judge, Then when a judgment is made, it is called into question because the "old" description doesn't exactly match the judgment!!!!! WTH??
The court ruled that the fence was the boundary. That is binding on both parties. There is no gap.
roger_LS, post: 414285, member: 11550 wrote: Like many things surveying, this boils down to an individuals comfort level. I can respect the many who feel just fine moving forward as is. Personally, I'd insist that Title Reports for parcels to the South be revised to reflect the judgement. This was a major oversight by the Title Co's who overlooked this judgement and they should fix it. In this case, it's really not a complicated issue that a surveyor needs to be intimately involved with. Real simple...there was a judgement that permanently fixed the location of the line, period. Now all future deeds/title reports should reflect this decision. As a business matter, I don't see getting involved as a profitable proposition, lots of messing around, and the skills of a surveyor are really not needed. Have the Title Co. revise the reports then get back to me when it's done, in the meantime I'll move on to other jobs where I can make some money.
"This was a major oversight by the Title Co's who overlooked this judgement and they should fix it. "
This would only be true if the judgement was recorded - do we know that in this case? Most judgments are not recorded.
roger_LS, post: 414286, member: 11550 wrote: Let's stay on point please, I don't see anyone arguing that the Title Co. needs to determine junior/senior rights.
Sometimes you miss the point, and sometimes the point misses you.
Title insurance only kicks in if there was a policy issued. And someone with standing has to make the claim.
Jim in AZ, post: 414373, member: 249 wrote: "This was a major oversight by the Title Co's who overlooked this judgement and they should fix it. "
This would only be true if the judgement was recorded - do we know that in this case? Most judgments are not recorded.
It was, but it was filed in an odd area according to the Title co. I have passed all the information along to the pertinent parties and we'll see what happens. I agree, there is no gap. I am sure the county assessor will still have an issue with it, if they can't map it they usually have issues regardless of the situation.
sjc1989, post: 414353, member: 6718 wrote:
Most decisions here simply say the existing deed line is now at the fence location. In other words I still own the SE1/4 of the SE1/4 and you still own the SW1/4 of the SE1/4, but the line between us is not where the math or some other evidence puts it. No need to record new deeds and no further surveying is ordered by the court nor is a surveyor involved with a case required by the court to record a plat showing where line is.
That is absolutely the way it works here as well. I've never seen a boundary dispute here where the court orders a deed correction.
MightyMoe, post: 414381, member: 700 wrote: Title insurance only kicks in if there was a policy issued. And someone with standing has to make the claim.
Interesting, I've always thought Title Insurance was issued with all properties, I guess if you weren't getting a loan you could opt out. I would think cash buyers would want this anyway for their own protection but maybe not always. With the Title Co., I would think that they would have an interest to get it right even without a claim being made so as to protect themselves against any future claim. My concern with the judgement is that we really don't know much of any background info on it, was this a ruling for adverse possession? Was it a ruling because of uncertainty with the actual position of the section line? Another concern would be, without a full search of the record, how do we know as fact that another judgement or agreement has not been made after this one? And why was it that the conveyances for parcels to the South didn't refer to it? Was there a reason for this that we don't know about or was it a simple oversight? My overall point, is that there is some risk here in just taking the judgement and running with it, and I'd prefer, if possible, to have this risk shouldered by others.
