Early next week I have a meeting with a client who has locked horns with an old 'enemy' over a piece of property. Both of these men are very successful and have enough time and money to take this to the Nth degree. This will probably be our last conference together before everyone "lawyers up".
As you can see by the drawing (not my drawing) there are two parcels that not only have a small gap between them, they both are also monumented (very well, I might add) in the field.
My client originally owned everything. The south parcel was deeded off in the early '80s. It has changed hands several times. My client sold the north parcel off in 2000. That property has changed hands twice.
We have all the surveys (different surveyors) and such. The instruments and records of the north parcel make no calls to the south parcel. By deed and monumentation, the two parcels are not congruent.
My client's 'adversary' has a contract to buy the north parcel. His surveyor has identified the hyatus and told his client that he is sure that the intent was to make the properties congruent. My client (the original grantor) won't acknowledge that he had any such intent. He is technically still the owner of record of the 'hyatus' property. His adversary contends that piece of property doesn't exist, but he wants to quiet title.
My question: Do you think that property exist? Do you think my client still retains title?
> My question: Do you think that property exist? Do you think my client still retains title?
The presumption of law is that the supposed "gap" does not exist. Your "client" (as well as the surveyors who are contending that the gap does exist) will have the burden of proof to overcome the presumption.
Because the surveyors have turned this into a "title" problem (hence the QTA), the existence of the "gap" must be proven by a measure of "clear and convincing" evidence. Numbers on a piece of paper designed to identify the subject matter of the conveyance aren't enough to overcome that presumption. Without an expressed reservation in the second conveyance, specifically retaining the supposed "gap," the "client" (and the surveyor who likely created the "gap") has a big up-hill battle and could spend tens of thousands of $$$$ bringing a futile action based upon a potentially erroneous survey. Who do you think he'll turn on to get his money back when all is lost?
Come on, really. Does anybody believe that this "client" intentionally created and retained ownership of a worthless, narrow strip of land? Boundaries are created by "intent" of the owner. How many zoning ordinances would be violated if this "gap" were to have been intentionally created?
JBS
JB
I basically agree with you in theory. The only thing that I am presenting to my client is that both parcels exist on paper and in the field (there are four existing pins on the extremities of the 'sliver'). My client still owns the almost 80 acres east and north of these parcels.
My client did ask an interesting question though, "How close together do pieces of property have to be before someone thinks they touch?" I told him to ask his attorney, I didn't have an answer.
My client knows my sentiment, but needs my survey to prove his 'point'...this won't be over for a while.
I wouldn't want to make any assumptions re: title issue until I could research the title. Inferring intent of the parties when the written conveyance does not call for the neighbors line may be hard to justify. Was the gap left because the grantor wanted to maintain access to the back adjoining parcel? How old are the parent deeds? Can you assume measurement errors? It's nice to be the ones to "clean up" all messy title issues but sometimes they seem messed up because they are messed up!
Well thought out, Mr. Stahl. MY first reaction was: How nice that we actually, for once, know the grantor’s true intent. It is pretty evident though, like you say, that the man is lying 🙁
Don
I think the tract probably still belongs to the original owner from the little info I have, but it doesn't really matter who is right. A trial judge may or may not understand the law. There is no telling what he will do.
One thing is for sure. Is that piece of property worth $10,000, $20,000 maybe $50,000? Because that is what it will cost to litigate. It doesn't matter who is right, the attorneys get paid either way. And they don't care about the out come.
Now is your chance to be a hero. Provide a solution. Can they split it and call it even? Pay you $1000 to write a legal description for each to get 1/2 of the remaining tract and call it draw. Nobody wins, but nobody looses and each has a chance to save some of his ego and a bunch of money. You got to find a way to help each party take the emotion out of the equation and look at the bottom line - MONEY.
> Now is your chance to be a hero. Provide a solution.
That is the key IMHO. Assuming that these folks are as successful as presented, one thing they will appreciate is the bottom line. Present the actual money they will likely spend on either: 1) a boundary line adjustment to fix it, via a surveyor, or 2) let a judge decide over the course of a couple years.
Regardless, they need a surveyor. Good luck Mr Cash, it seems time to put on the salesman hat and set these folks straight.
At least it's a gap instead of an overlap.
I Believe North Will Prevail
Since South was sold to a well documented line, the North Parcel is the remainder. I believe the court will say there was no intent to hold a useless piece of land. In order to clear title, the original owner should quit claim the strip for $1 plus expenses because that is the best deal he will ever see.
Why do the original deeds not have adjoiner calls, because such calls make the court case moot?
BTW it looks like a gore also on the West side.
Paul in PA
I Believe North Will Prevail
> Since South was sold to a well documented line, the North Parcel is the remainder. I believe the court will say there was no intent to hold a useless piece of land. In order to clear title, the original owner should quit claim the strip for $1 plus expenses because that is the best deal he will ever see.
>
> Why do the original deeds not have adjoiner calls, because such calls make the court case moot?
>
> BTW it looks like a gore also on the West side.
>
> Paul in PA
I bet the answer to the question "why doesn't the legal description have calls to the adjoiner" is the same answer to the question of "why did the surveyor who cut out the second parcel ignore the well established line of the first parcel" ... clueless surveying ...
Would-Be Survey "Heroes"...
That's easy. Just give the title insurance company a certification that the north property's south line touches the 15' access easement across the south parcel (which, by math, falls short).:-|
ps: this is the property's only access. The west boundary is Interstate on-ramp.
I Believe North Will Prevail- 3rd vote
I also believe north will prevail. Seems pretty simple in my mind and my biggest concern is that it seems pretty simple in my mind.
I would think the ground monuments rule over all title opinions. No gap exists. Descriptions are meant to help you find the points not define the limits. You found the monument so that is the line no matter what the deeds describe.
And this comes from a friend who used to run our planning department. "There is never a gap or overlap on the ground, only in the records".
Ground rules over record. Isn't that what we are paid to find?
Stan
There are several simple solutions, I agree. And given the opportunity, I might wish that I had no dog in this hunt.
I believe the biggest issue here is that two old bulls are pushin' and gruntin' at each other over one blade of grass. Maybe one said to the other, "Give me a quit-claim deed"...and maybe the other one said "poop and roll in it." I don't know. But I hope this one stops at depositions...hopefully quicker.
I Missed The 15' Easement
However North's deed should include the easement and with that call the gore is even less important.
I take it that the original South surveyor failed to survey the entire parcel and also did not rewrite the North description. Then it is probable that the North surveyor used mathematics instead of monuments. If you end up telling me that it was the same surveyor, I promise to cry.
One way to have avoided this was to write a "less and except South" description of North.
Paul in PA
Deral,
There are existing pins on all the corners of both parcels. That is really the wrench in the cogs. Both parcels are described, they close, and their boundaries are monumented. They just don't abutt each other.
I just hate that when it happens, Two surveys obviously coming off of different corners that lead to a percieved gap or overlap where one was never intended.
> I just hate that when it happens, Two surveys obviously coming off of different corners that lead to a percieved gap or overlap where one was never intended.
Same old story... goes something like this, "we don't need the whole place surveyed... I just need this lot cut out over here." gap here, gore there, lawsuit down the road.
So the real issue is the access easement (running north-south in roughly the middle of the south parcel) doesn't touch the north parcel on paper.
Even if there is a gap and the original owner owns the gap, he must've been aware of the access to the parcel he sold. Therefore it would seem to me at a minimum the north parcel owner has an implied easement across the gap. Trying to block access to the north parcel by the mistake caused by the original owner as grantor (or his agent the land surveyor) probably won't fly.
Would-Be Survey "Heroes"...
Yes, it's perfectly natural. He intended the 15 foot easement in order to drive a trailer full of bicycles up to the 2 foot strip. From there, he and his buddies bicycle back and forth, then reload the trailer, back out, and go home.
The Judge is going to find against your client. Then the Judge is going to order your client to pay all court costs and attorney fees (assuming he gave a warranty deed for the north parcel).
THE FIX
Have your client sell the square footage in the gap to the other dude. Have the surveyor of the 2000 survey of the North parcel fix his screw up for free and provide a correct survey and correct legal description and a correction deed for recording. Your client can also require that the surveyor pay for your services in checking his work to make sure it takes care of the situation. If the surveyor does not want to do that, threaten him with a lawsuit and turn him/her in to the Board for disciplinary action.
This will get the end result that needs to be done. The dude that is buying the North parcel has not paid for that land yet, so it is fair and he gets the property he wants and the mess gets cleaned up. Your client gets some money out of it so his dignity is intact. The surveyor gets what he/she deserves for messing it up in the first place.
I hate it when surveyors mess up such a straight forward job like this. Makes us all look like idiots!